R v Itani - [2021] NSWDC 26

District Court

New South Wales

Medium Neutral Citation: R v Itani [2021] NSWDC 26
Hearing dates: 25 January 2021 – 12 February 2021
Decision date: 18 February 2021
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Verdict of not guilty

Catchwords:
Armed robbery; joint criminal enterprise

Legislation Cited:
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995

Cases Cited:
Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
Ghani v Jones (1977) 1 QB 693
House v The King (1936) 55 CLR 499; [1936] HCA 40
McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Riley [2020] NSWCCA 283
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Category: Principal judgment
Parties: Director of Public Prosecutions (Crown)
Khaled Itani (Accused)
Representation: Counsel:
C Dodds (Crown)
A Moutasallem (Accused)
Solicitors:
R Nezval (Crown)
D Gaudiello (Accused)

File Number(s): 18/360930
Publication restriction: Nil

index

index

Judgment ON VERDICT

The evidence in the Crown case
Evidence of Mr Tom Andrews
Evidence of Yilmaz Yildiz
Evidence of Satya Kong
Evidence of Constable Jin Choi
Reasons for judgment on the voir dire
Evidence on the Voir Dire
Submissions on behalf of the accused
Submissions on behalf of the Crown
Submissions in reply
Determination
Further evidence in the Crown case – Detective Senior Constable Casey Braz
Evidence of Mr Christopher Preece
Officer in charge recalled
Evidence of Da-Ren Xie
Evidence of Alannah Sheekey
Evidence of Ibrahim Droubi
Evidence of Zahara Michails
Evidence of Cristian Salazar
Evidence of John Phillip Brosnan
Further evidence by the Officer in charge
Evidence of Alice Tran
Evidence of Detective Senior Constable Haithem Jouni
Officer in charge recalled
The Crown address
The address on behalf of the accused
Directions of law
Circumstantial evidence – link in the chain direction
Direction – expert witness evidence
Direction in respect of the accused’s evidence (Liberato Direction)
Direction as to lies by the accused (Zoneff v The Queen)
Direction - the election of the accused not to give evidence
Direction – the good character of the accused

Assessment of witnesses generally
Factual findings
Findings based on the accused’s banking records and expert evidence of Ms Tran
The post-event exculpatory conduct of the accused
Determination
Order

Judgment ON VERDICT

On 25 January 2021, the accused pleaded not guilty to one count on the Indictment:

Count 1 – On 2 May 2018 at Belmore in the State of New South Wales, did whilst armed with a dangerous weapon, namely a black pistol, rob Yilmaz Yildiz of $96,315.00, the property of Monarch Hotels Pty Limited (trading as Belmore Hotel)

This is an offence pursuant to s 97(2) of the Crimes Act 1900. Both the Crown and the accused person agreed that the accused be tried by judge alone, and an order was made pursuant to s 132(2) of the Criminal Procedure Act 1986 for the trial to proceed by way of judge alone. Upon arraignment, the accused pleaded not guilty to the charge, and this judgment records my verdict and my reasons for reaching that verdict.
The elements of the offence are as follows:

On 2 May 2018 at Belmore in the State of New South Wales,

Whilst armed with a dangerous weapon, namely a black pistol,

The accused did rob Yilmaz Yildiz of $96,315.00,

The property of Monarch Hotels Pty Limited (trading as Belmore Hotel).

The Crown bears the onus of proving each of the elements beyond reasonable doubt. The onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. I am mindful that speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference.
At the time of the offence, the accused was working at the Belmore Hotel as a security guard and was on night shift. The Crown case does not allege that the accused was the armed robber. The Crown case is that the accused was involved in a joint criminal enterprise to commit the armed robbery with the armed robber, who has not been apprehended.

The evidence in the Crown case

After opening the Crown case, the first Crown witness was Detective Senior Constable Christopher Lindsay, who was the officer in charge of the investigation. Through Detective Senior Constable Lindsay, a calendar for the year 2018 was tendered which showed that 1 May 2018 was a Tuesday (Ex A). A diagram of the hotel premises, which was located on the corner of Burwood Road and Tobruk Avenue, was also tendered (Ex B).
A bundle of 23 photographs taken by the crime scene officer on 2 May 2018 became Ex C. A further bundle of 11 photographs taken by Detective Senior Constable Lindsay became Ex D.
Also tendered through the officer in charge was a map of the general geographical location, showing the location of the hotel, the home of the accused, the home of the accused’s girlfriend, and a number of mobile phone towers in Belmore (Ex E).
Detective Senior Constable Lindsay gave evidence that, as officer in charge, he became aware that a man by the name of Omar Saadallah was a friend of the accused. Mr Saadallah was a citizen of Canada and had visited Australia in April and May 2018. Ex F was his visa application submitted on 18 December 2017. Ex G was a copy of the passport of Mr Saadallah, who was born on 21 January 1987. It contained a passport photo of him taken at the time of issue, namely 15 November 2017.
Exhibit H was the marriage certificate obtained of Mr Saadallah. He had married on 14 August 2009 in Ottawa, Canada.
Exhibit J was an extract from a statement from Ms Narelle McPhail, a supervisor with the Australian Border Force. It indicated that Mr Saadallah arrived in Australia on 20 April 2018 and departed on 8 May 2018, returning to Canada. Exhibit K was four photographs of Mr Saadallah upon arrival and departure, taken at the Immigration desk at the airport.
Police inquiries reveal that a previous manager of the Belmore Hotel was known as James Leatherbarrow. Detective Senior Constable Lindsay gave evidence that during the course of the police investigation, information was obtained as part of a listening device operation from the accused’s mobile phone, indicating that Mr Leatherbarrow had some involvement in the robbery. Exhibit L was a record obtained from the Australian Border Force showing that James Leatherbarrow left Australia on 22 April 2018, returning to England.
Exhibit N was a rental agreement between Hertz Australia Pty Limited and Omar Saadallah, commencing on 23 April 2018 and ending on 7 May 2018.
Detective Senior Constable Lindsay gave evidence that police investigators became aware that the person responsible for committing the armed robbery had taken and handled the mobile telephones of the night manager, Mr Yildiz, the employee, Ms Kong, and the accused during the robbery. On 2 May 2018, the accused’s mobile phone was seized by Detective Senior Constable Braz. On 4 May 2018, Senior Constable Duarte conducted what is known as a Cellebrite examination of that phone. A PIN number had been provided by the accused which enabled the police to open the phone and look through it. Seven photographs of the phone showing various screenshots became Ex N. One of those screenshots showed a number of applications that were on the phone. Another photograph showed the location services which listed significant locations at which the phone had been located prior to May 2018.
A further four pages of screenshots taken from the accused’s mobile phone, relating to email communications, were marked for identification. Subsequently, objection was taken to the admissibility of those documents and a retrospective objection was taken to the documents adduced by consent into evidence as Ex N. The question of admissibility of those documents was deferred.
Detective Senior Constable Lindsay gave evidence that CCTV footage of the premises known as Belmore Hotel had been recorded on two hard drives referred to as digital video recorders or DVR’s. Investigating police had reviewed hours of footage from the two hard drives and compilation tapes were prepared of relevant events. Upon assessment, the time stamp on DVR1 was accurate to within 30 seconds to Australian Eastern Standard Time, and the time stamp on DVR2 was 4 minutes and 6 seconds ahead of the time stamps on DVR1. The location of the various cameras for DVR1 were marked on a copy of Ex B, which diagram became Ex O. The location of the cameras for DVR2 were marked on a separate copy of Ex B, and that diagram became Ex P.
Detective Senior Constable Lindsay gave evidence that on 2 May 2018, a police statement was obtained from the accused. It became Ex S. In his statement, the accused outlined that he had been employed full-time as a security guard with Sun Security for two years, and that for four months he had been working as a security guard at Belmore Hotel on night shift from 11pm to 4am. He also did security work at the Banksia Hotel on Friday, Saturday and Sunday nights from 8pm until 6am.
The accused told police that approximately two weeks prior, on a Monday night, a manager at the Belmore Hotel, James Leatherbarrow, called his mobile phone and asked to speak with him when he arrived at work. That night at work, Mr Leatherbarrow told him that he had taken money from the safe to gamble on horses. The accused had told Mr Leatherbarrow that he would lend him $800 and that he could pay him back the following week.
The accused told police that he lent $800 to Mr Leatherbarrow, who was fired a week later. He then learned that Mr Leatherbarrow was travelling to the UK and contacted him. Mr Leatherbarrow said he was going to pay back the $800 he had been lent and transferred $200 into his account, but the accused had not received any more money from him.
The accused also told police that on Monday 30 April 2018 he was working at Belmore Hotel and between 2 and 3am he was standing next to the back door of the premises when he was approached by two men, one of whom asked him whether the cameras in the hotel were linked to the police station, and the accused told him that they were.
The accused then told police that during his shift on Tuesday 1 May 2018, he had observed a man of middle-eastern appearance with long black hair, tied into a ponytail, playing a poker machine at the back of the hotel. The man had been sitting with an older man playing poker machines, and had withdrawn money from an ATM six to seven times during the early hours of the morning. The accused told police he saw them leave at approximately 3am.
The accused outlined his duties at closing time to secure the hotel premises. On this occasion he said that he checked the front door, the toilet and walked to the rear of the premises where he went to the disabled toilet. When he left the toilet he saw that the storeroom door was open and he went into that room to check it. There was no one there, so he returned to the hotel and closed the door behind him. He then gave the following account of what happened:

“On this occasion when I saw the door open again after the store was closed I went down stairs to make sure no one was down in the storage area. I walked around down there and about half a minute later I turned to walk back to the door to come upstairs to the public area. I heard a noise like someone running behind me.
I felt somebody push me to my back before I could turn around. I felt something hit me to the back of the head which felt like is was hard plastic. I hurt when he hit me. I then felt something being pushed to the back of my head. I heard males voice say, ‘Don’t move, give me your phone’. I could feel somebody pushing me to make me move towards the door. I put my hands in the air and said, ‘Take what ever you want. Just don’t hurt me, I have a family’.
I had my phone in my hand and had my hands in the air above my head. We walked up into the public area of the hotel where the poker machines are and the man kept pushing me in the direction of the bar. The man ran in front of me and grabbed my shirt around the centre of my chest area with one of his hands and started pulling me towards the poker machines where Sasha was. Sasha was standing next to the poker machines with the trolley which had the bags of the poker machine money. The man said, ‘Get on the ground’ and ‘Phones’. Me and Sasha got on the ground and put our phones on the ground in front of us. The man grabbed our mobile phones and put them in one of the bins in the poker machine area.
I could see this man now and saw that he was about 182cm tall, of a big build, he had a dark black coloured thing covering his whole face. I couldn't see his eyes or his mouth at all. The man had long hair which was tied back in a low pony tail. The pony tail went down to the man's shoulders. The colour of the man's hair was black. The man was wearing black coloured clothing covering his upper body with no symbols on it. The man was wearing tracksuit pants but I don't remember the colour. He was wearing yellow coloured boots like workman's boots. I didn't see any symbols on the man's pants or shoes. The man was wearing red coloured gloves covering his whole hands. The man yelled ‘Don't look at me or I'll shoot you’.
I was scared when he said that. I was wondering what am I dying for. I just wanted him to leave and for no one to get hurt. I was scared that the man was actually going to shoot me.
He was holding a gun in his hand but I'm not sure what hand he was holding it in. The gun was a little bit bigger than a Police gun and was black. The gun was shiny in the hotel lights. The man was pointing the gun at me and Sasha and the night manager. I'm not sure how the bullets would have went into the gun. I just know it was shiny and black. I have drawn a picture of the gun for Plain Clothes Senior Constable Fretten and have labelled it Annexure A ‘Hand drawing of gun’ and signed it and dated it. Plain Clothes Senior Constable Fretten also signed it and dated it.
The man said, ‘Money, money’. The man had a deep voice which didn't sound like he had an accent but he didn't-say long sentences just a few words. Sasha grabbed the bags of money from the trolley and started putting them into a black coloured school bag which the man had given to Sasha to fill.
The night manager was standing behind the bar and the night manager put his hands in the air when he saw me walking in front of the man. The man yelled at the night manager, ‘Money money’ while he was pointing at the money exchange machine. The manager got the key for that machine and he went over to the exchange machine. The man with the gun took me, Sasha and the night manager over to the money exchange machine and the night manager was taking so long to open it to get the money for the man with the gun. The man with the gun was getting impatient because I could hear him taking deep breaths.
I said. ‘Please don't hurt anyone. We will give you whatever you want’. The night manager was taking so long. I said, ‘Hurry up and give him the money’. The night manager opened the money exchange machine but only the top where there's only about $500 whereas the bottom drawer holds a lot more money. The night manager pulled out a bunch of 50 dollar notes about an inch thick and handed them to the man with the gun in his hand.
The man with the gun said, ‘Come, come’ and started pushing all three of us towards the back of the hotel where the toilets are. The man pushed me to the back of my right shoulder. The man with the gun opened the door to the disabled toilets and said, ‘Go inside, if anyone go out. I shoot’. Me, Sasha and the night manager went into the toilet and the man with the gun closed the door to the toilet.
We waited in the toilet for about 2 minutes and the night manager told us to come outside. I said ‘We should stay in here more’. But the night manager wanted to get out.
We all came out of the room and Sasha called Police and the night manager spoke on the phone. Police came not long afterwards and I spoke with Detectives I gave Plain Clothes Senior Constable Fretten my work shirt which the man with the gun had touched.
I went with Plain Clothes Senior Constable Fretten to Campsie Police Station where I gave this statement.”

Detective Senior Constable Lindsay was cross-examined in part. He agreed that part of the police investigation was directed towards Omar Saadallah, who had left Australia about a week after the robbery on 8 May 2018. He agreed it was the Crown’s case that Omar Saadallah was the man holding the gun during the robbery, as shown on the CCTV footage.
Detective Senior Constable Lindsay agreed that police investigations revealed that as at the date of the robbery, it appeared as though Omar Saadallah was bald. CCTV footage from 2 May 2018 at 4.28am, from camera 5 on DVR1, was played to the court. He was asked whether the robber shown in the footage appeared to have hair and answered:

“A: Whether its hair or not I’m not open to say but there is something along the back, yes.”

Detective Senior Constable Lindsay agreed that the investigations showed the robber was hiding in the storeroom before the robbery. Footage taken at 11.15pm on 1 May 2018 from camera 7, DVR1, was shown to demonstrate that both Mr Yilmaz Yildiz and Ms Satya Kong went to the storeroom after the accused was seen moving the disabled toilet sign adjacent to the storeroom door at 11.16pm. He agreed that neither witness said anything about the sign propping open the door in any of their statements.
Further CCTV footage was shown at 11.35pm on 1 May 2018, showing Ms Kong entering the storeroom and not moving the retractable sign. She left the storeroom at 23:36, and again, there was no movement of the retractable sign. The accused was shown walking into and out of the storeroom at 11.48pm, and again, Detective Senior Constable Lindsay agreed that the retractable sign for the disabled toilet stayed in the same spot. At 12.45am on 2 May 2018, Mr Yildiz and Ms Kong were seen approaching the storeroom door, at which point, the sign was not propping the door open. At 12.58pm, Mr Yildiz was again seen entering the storeroom and then leaving the storeroom, at which point, he could be seen crouching, doing something on the floor. Detective Senior Constable Lindsay agreed that there appeared to be no movement to the retractable sign. Mr Yildiz again went into the storeroom on 2 May 2018 at 1.15am, and again, when leaving, was seen to be crouching down doing something at the doorway, however, Detective Senior Constable Lindsay agreed that there was no movement of the retractable sign. He also agreed that Mr Yildiz said nothing in his statements about going in and out of the storeroom on the night of the robbery.
Detective Senior Constable Lindsay agreed that, on a previous bail application, a synopsis prepared for the court recorded that on 24 April 2018 at 11.50pm, the accused had gone into the manager’s office and put his phone on a charger. Detective Senior Constable Lindsay was not aware of any complaint about the accused using the manager’s office to charge his phone.
Detective Senior Constable Lindsay was also asked about a loan the accused had made to a previous manager of the premises, James Leatherbarrow. Detective Senior Constable Lindsay also agreed that the accused told police about unknown middle eastern males entering the hotel on the night of the robbery. At that point in the cross-examination, a number of witnesses were interposed in the Crown case.

Evidence of Mr Tom Andrews

Mr Tom Andrews gave evidence that he was the licensee of the Belmore Hotel on 2 May 2018. He gave evidence of the staff working at the hotel and that the accused was a security guard engaged by Sun Security. He became aware of the robbery on 2 May 2018 when he received a phone call around 4.30am from Mr Yildiz. He went straight to the hotel and completed a crime scene examination consent form, entitling police to enter the crime scene to conduct necessary enquiries. He gave evidence of the CCTV recording systems within the premises and provided police with the two DVR hard drives. He also gave evidence that $87,835.00 was taken from the gaming machines’ takings and the sum of $8,480.00 from cash redemption terminals, totalling $96,315.00.

Mr Andrews gave evidence of various locations within the hotel premises by reference to the diagram Ex B, including the retractable sign located near the storeroom door directing patrons to the disabled toilet. He gave evidence about the operation of the storeroom door, which at the time of the robbery, was not locked or lockable.
Mr Andrews also gave evidence that the Belmore Hotel had 30 gaming machines which staff were not permitted to use whilst on shift.
In cross-examination, Mr Andrews gave evidence that he had never, prior to the night of the robbery, spoken to the accused. The accused was not an employee of the hotel, but was a contractor through the relationship with Sun Security.
Mr Andrews gave evidence that he had not spoken to Mr Itani about expectations of a security guard at the hotel, nor about the hotel’s plan of management. Nor had he had a discussion with the accused about what he was or was not expected to do whilst takings were being counted at the end of the shift.
No one had ever complained to Mr Andrews about the accused charging his phone in the manager’s office, and he was not aware of any complaints made about Mr Itani carrying out his duties.
Mr Andrews gave evidence about a safe in the manager’s office which was used to store the office float, which comprised $5,000 for poker machine payouts, together with other amounts which totalled between $800 and $1,200, and a standing office float of less than $300 to $400. He gave evidence that no money was stolen from the safe on the night of the robbery.
Mr Andrews gave evidence about stock that was stored in the storeroom. When speaking to police, he had been shown some of the CCTV footage, but he did not know who the last staff member was to enter the storeroom before the robbery.
In re-examination, Mr Andrews gave evidence that Mr Leatherbarrow had confessed to taking a sum of money from the office float. He gave further evidence that if the storeroom door was not closed, it would not be able to stay open by itself.
Mr Andrews gave further evidence that security plans were provided by the owners of the hotel to the security provider, and it was the owner’s expectation that the security provider would instruct their staff as to what was required in the same plan.
In further cross-examination, Mr Andrews said that the hotel owners expected that security were briefed by the security company. In the case of Mr Itani, he did not know whether that in fact occurred or not.

Evidence of Yilmaz Yildiz

Mr Yildiz was the night manager at the Belmore Hotel on 2 May 2018. He had worked for the Monarch Hotels Group, the owner of the Belmore Hotel, since April 2018. In 2018, he was asked to take up the position of duty manager, night shift, after another manager had left the hotel. He commenced working at the Belmore Hotel on 16 April 2018 and worked a total of five or six night shifts prior to the robbery.
Mr Yildiz gave evidence about his duties as the night manager. He gave evidence that, at the time of the robbery, there were only three staff members at the hotel; Sasha, himself and the security guard. He gave evidence that he had spoken to the security guard during the shift before midnight. He gave the following evidence:

“Q. Before the midnight?
A. Yes. Yes, like just normal quick chats, "Everything all right", this that. And he came to the office a number of times that night which never happened before.
Q. When you say never happened before, what do you mean?
A. I mean coming into the office and he just ask some questions and usually the shifts before that night I did, I work with him, he never came into the office to ask questions. So he usually we have communication system, we just radio.
Q. Radio?
A. Walkie Talkies or we communicate over the radio. If he needs me he calls me out, I go out I speak to him, he doesn't come to the office.
Q. What did he do at this time?
A. He came to the office, the thing I clearly remember, the question he asked, he said "Are you happy working in here? In this place?" So that was a clear question I remember. He asked a lot of things but I can't recall but I clearly remember he said "Are you happy working here?"
Q. What part of the shift was that, was that before midnight or after midnight?
A. Most likely after midnight because he starts late already, 10 or 11pm. I'm pretty sure it was after midnight.”

As part of his duties, Mr Yildiz compiled reports using an Excel spreadsheet.
Mr Yildiz gave evidence that at closing time, he locked the main door on Burwood Road and also the door on the Tobruk Avenue side of the hotel. He then checked with the security guard whether anyone was left in the hotel. He gave the following evidence:

“A: Yes, I clearly remember I ask him ‘Did you check the toilets? Is there anyone left in the pub?’ He said, ‘No one left in the pub. I checked everywhere’. That was the words I’m pretty sure we were used.”

Mr Yildiz gave evidence that after he had locked the doors, he went to collect the gaming till in the gaming room. He took the till and the gaming machines’ computer to the office to do the last report for the day. He then gave the following evidence:

“Q. And what’s the next thing that happened or that you did or that you remember happening?
A. I heard some noises. Noises means talking, sound of a male. And which I couldn’t recognise and in my mind I thought it’s only Sacha and security guard, there’s no one else. And decided to walk out of the office to check out what’s happening and then I saw security guards, Sacha and a guy in complete black, which had a gun in his hand pointed at me.
Q. A gun in his hand pointed at you?
A. Yes.
Q. Right. Where were you when that happened? Where were you standing?
A. So manager’s office. I opened the door, I entered that bar area and I saw them right in front of me which probably they’re - the square thing just on the side here. So the yellow, it says “You’re here”, and around there, they were there and I was just behind the door, manager’s office.
Q. Okay. You saw a man pointing a gun at you?
A. Yes.
Q. What was the very next thing that happened?
A. I was - I was in shock at that moment. I - for a second I just thought someone joking. This is just a joke.
Q. Yes.
A. And when I just realise it’s just something happening, I just put my hands up trying to give message “Don’t shoot.”
Q. Okay. Did the man with the gun do or say anything to you at that point?
A. He - he was talking. The whole face is covered. Most of the things he say Icouldn't understand the stress and panic this. I heard some noises from him but couldn't understand much of it to be honest.
Q. Okay, well what happened? Tell us what happened?
A. Then they - as soon as I got out of the office was standing here, saw them, thinking that it was a joke. Saw the gun pointed at me and they started approaching to the bar and he came - he came into that area which is just behind the bar and he ask me to get on the ground. And I remember Sasha as well and security guard as well were forced to get on the floor. The thing I reme
Q. Did you have a phone?
A. Yes, I did.
Q. Did you do anything with it?
A. It was in my pocket. I had to give him. I was forced to give him. He took my phone from my pocket.
Q. He took your phone from you?
A. Yes.
Q. Did you give it to him or did he take it from you, what happened?
A. I was on the floor. I was on the floor and I remember like he was in ten seconds and - so can't remember exactly if I pulled it out from my pocket or he pulled it out from my pocket but I was showing my pocket where I was, yeah.
Q. What happened to the phone, where did it go?
A. I didn't know until the guy in the black left. At the end after he left we found the - Sasha found the phones in the bin.
Q. All right, he's told you to get on the ground?
A. Yes.
Q. What's the next thing that's happened?
A. Next thing. We stayed in there for a while and he took our phones. Then we were forced to move to the other area in the gaming room which I believe it's just behind the - the little thing here, it's a water feature, we were just a bit on south that so we were put on the floor again and I stayed on the floor. I can't remember - it feel too long but I think it was just minutes and so we were kept there. During that time I was just little bit lying on my floor, my face facing the floor and during that time I didn't see much, I was just doing what I was told. So, yeah.
Q. Did you feel anything - had you felt anything at that point?
A. There's of course a lot of things going through your mind, you might just die, you might just - you know, it's a situation you just don't know what to do to be honest. It's, yeah.
Q. Had you been hurt at that point?
A. Not very badly. I was hit from my head with the gun a few times, yeah.
Q. Hit in the head with the gun a few times?
A. Behind of my back, yes.
Q. Behind where?
A. Behind here.
Q. The back of your head?
A. The back of my head, yes.
Q. You pointed to the back of your head with your arm and hand?
A. Yes.
Q. What did that feel like?
A. That's, I've been to the army, it's a compulsory military service from my country. So I know how guns feels. That's knowing that how guns feels when you hold them, because of that I felt it was a plastic or something else. Because if I got hit with a real solid gun it'll hurt big time, yes.
Q. Yes?
A. Yeah, so with this gun it's, I don't know but I thought it just didn't feel like a solid real gun.
Q. What did it feel like?
A. It - not like solid metal but it's, for a second I thought wood or for a second I thought plastic but didn't feel like a solid metal, yeah.
Q. When were you - you said you were hit a few times with a gun to the back of the head?
A. Yes.
Q. Up to the point you were in the gaming room near the water feature had you been hit to the best of your memory before that or by that point or were you hit later?
A. The very two moments I can clearly say I remember 100% I got hit, one of them was towards to the end when I was taking the - he was behind me, the guy in the black, he was behind me and I could still feel the gun here and he was forcing me to open the e-cash machine which is the machine you put the tickets in and it gives you the money for the customers.”

Mr Yildiz gave evidence that the robber then took himself, Sasha and the security guard to the disabled toilet, during which the security guard said, “Take it easy, mate”, because the robber was hitting Mr Yildiz.
Mr Yildiz gave further detailed evidence as to what occurred by reference to the diagram in Ex B. He was asked:

“Q. What is the next thing that you remember?
A. The next thing I remember, okay, so we were on, I was on the floor for a while, assuming up until Sasha cleared all 30 machines, and after that I remember I was moved to another part of the gaming room, which I believe near it says the yellow things as you're here, and I think, I remember after Sasha cleared all the machines, the guy in the black took me to the bar and asked me to get the keys for the ecash machines, and the gun on my head he forced me to go to the bar. I took the keys and we came back to the where the ecash machines were.
Q. When you say the bar, do you mean the bar near your office?
A. Near office, just behind the office, yes.
Q. He told you to get the keys?
A. He asked me to get the keys, yes.
Q. Did you tell him where they were?
A. I didn't tell him where they were, he just said "keys, keys, keys", he like, when someone with a gun on your back or your head asking for keys, you just go and grab them.
Q. Then from there you went to the ecash machines?
A. Yes, then we went to the ecash machines, that was probably the first moment I saw the security guard and Sasha, and there was the first moment I remember, I saw them standing, standing and safe, so and gun on my head, I was asked to open the machine. It was you have to open the machine first, then you have to take, there's a big metal cash box in it, you have to take that one out with a different key, it's got another lip to open with the key, so it's a bit of a process. Having the gun in your head, I was a bit shaking, and so it took a little bit of time, that's why, and because he was taking time, that's where he hit me, quick, and eventually I managed to open it, take everything in the cash box and he showed me the bag and asked me to throw everything in the bag, which I did.
Q. You’ve put money from the e-cash machines into a bag?
A. Into a black bag - a black bag he was holding.
Q. A black bag he was holding? And then what happened? What happened next?
A. The next thing, so I put the money in there then we all three of us were forced to walk to the disabled toilet which is just behind the e-cash machines and I remember Sacha was in front of me and the black - the guy in the black was behind me and the security guard was next to him and I had the gun - he had the gun pointed behind my head and we all three were forced to walk into the toilets.
Q. All right. And you went into the toilet?
A. Yes.
Q. Did the man with the gun say anything to you, that you can recall?
A. I couldn’t understand exactly the words but the message I took from the body language from the thing, “Don’t come out. I’ll shoot.” That’s the message I got from the situation.
Q. Can you describe the man with the gun at all?
A. Only with the size because he was like - it was like dark, it was completely dark. I couldn’t even see holes in the eye like the whole body was covered in black. Even the hands. I couldn’t see hands. Gloves. Big guy. He was solid, probably--
Q. How tall--
A. Yeah. Sorry?
Q. Sorry, how tall was he? Approximately how tall was he?
A. I would probably say 185 to 190 cm I would say.
Q. So he was a big guy?
A. He was a big guy, yeah, and I’m--
Q. Solid?
A. Solid, yes.
Q. Okay. Is there anything else you can - is there anything you noticed or recognised about him, or you can say what he looked like?
A. Like it’s - he remind me, later on but if I thought for that night, only that night without thinking, without after everything happen a few days later, a few weeks later, so on that night it was just I couldn’t recognise anything but the size and the darkness. Just a black figure walking around. Yeah.
Q. Okay, and what about the gun. Did you make any observations of the gun?
A. No, it was behind me the whole time so I never had a chance to have a close look so wouldn’t have an idea of what it actually was, yeah.
Q. But you felt it?
A. Yes.
Q. I think you said--
A. The first time I saw was when I got out of the office and look from the distances, that was the only time I actually saw the gun with my eyes and that was like a bit of way, I don’t know, like 5, 6 metres away from me and the gaming room being pretty dark. So couldn’t see the gun exactly what it was looking like.
Q. Did you see what colour it was?
A. Black. It was black as well.
Q. Could you tell how big it was?
A. Hard to tell from a distance but it’s just the size of a handgun, that’s what I saw.”

Mr Yildiz gave the following evidence as to what occurred when he, Sasha and the security guard were in the disabled toilet as follows:

“Q. As a result of being told that by Sasha or made aware of that by Sasha, what did you do?
A. When we were in the toilet, I checked everyone, including security and Sasha. First I tried to pull out my phone to call the police and realise it’s not there and I ask security guard and Sasha, “Where’s your phone? Where’s your phone.” Both say, “He took it”, motioning the guy in black and then we just - I just realised no phones. So, in my head, I’ve got to get out of here. I have got to call police. We need help and when we got out, I got stopped by security guards to - not to leave the toilets and--
Q. When was that?
A. It was happening in the toilet. So, I was focusing on getting out of the toilet and call help, call police.
Q. Yes.
A. Security guard tried hard to stop me, “Give it time. He might be in the office. He might be there.” He tried to stop me and, eventually I didn’t listen. I got out. I checked around. There was no one and then straight I went to the bar section to call the police. I used one of the phones, one in the office and one in the bar and somehow it just didn’t work. Then Sasha gave me phone and at that point I ask, “Didn’t you say the man in black took your phone?” Then she pointed the bin and where - that’s exactly when I saw where our phones were.
Q. Yes.
A. Yeah.
Q. As a result of seeing where your phones were, what did you do?
A. I called the police immediately.”

Mr Yildiz gave evidence that after the police arrived, he had a conversation with the security guard, but could not remember the details. He did remember what he described as an “interesting question about how much money was taken”. He told him he did not know how much.
Mr Yildiz made a statement to the police on the morning following the robbery. He spoke further to police on 31 May 2018 and 13 June 2018 about being involved in a controlled operation, namely an idea of him extorting or blackmailing the security guard, Khaled Itani, for money in exchange for him not telling police that he suspected that Itani and his friend were responsible for the robbery.
Mr Yildiz gave evidence that the friend he referred to was a man who had come to the hotel a number of times and the accused had told him that it was his cousin. He did not know his name or where he was from, however, he had seen him multiple times.
Mr Yildiz gave evidence that the controlled operation took place at the Woolworths car park, Campsie, on 1 July 2018. During their conversation, Mr Itani made no admission to him about being involved in the robbery at all and denied being involved with the robbery.
Mr Yildiz identified the man he knew as the cousin of the security guard in two photographs taken from CCTV footage from the Belmore Hotel, which became Ex U.
Mr Yildiz was shown CCTV footage of the Belmore Hotel at 4.12am on 2 May 2018. It showed the security guard in his office and a conversation occurring between them. He gave evidence that the security guard had not had a conversation in the manager’s office like that shown in the video on any other shift.
In cross-examination, Mr Yildiz gave evidence that he gave three statements to the police, the first on 2 May 2018, when the incident was still very fresh in his mind. The second statement was made on 8 August 2018, and he agreed that between 2 May 2018 and 8 August 2018, he and Satya Kong had had conversations about the robbery.
Mr Yildiz’s third statement was made on 9 December 2020.
Mr Yildiz was cross-examined about money kept in two safes in the office. It was put to him that no money was taken by the robber from any safe in the office, but he stated that he was not sure as he didn’t see what happened when they were in the toilet. He gave evidence that he did not give the robber any money from the office.
Mr Yildiz gave evidence that he did not remember the accused charging his phone in the office during shifts he had worked with him, but agreed that it was a possibility.
He also gave evidence that he never had a general conversation with the accused in any of those shifts about what he expected the security guard’s practice would be whilst working in the hotel.
Mr Yildiz was cross-examined about the storeroom. On the night of the robbery, he could not remember entering the storeroom, but said it was possible. He was shown a number of passages from the CCTV footage of him entering the storeroom, at 12.45:36, at 12.58:57, and at 1.15:50. He was also shown footage of two uniformed policeman entering the hotel at 3.19am and the security guard in his office at 3.22am. He agreed that it was not a problem for him that the accused was in his office, but he could not remember the conversation.
Mr Yildiz was cross-examined on his evidence that he locked the front door to the premises on Burwood Road. He said he was the only one who had a key to lock those doors, however, he was then shown CCTV footage at 3.50am of the accused attempting to lock the door. He said he could not remember the accused assisting him with locking the door on that occasion, but CCTV footage at 3.52:55 showed Mr Yildiz and the accused at the front door, locking it.

Mr Yildiz agreed that when the armed robber had taken him, the accused and Sasha to the disabled toilet, he had said words to the effect, “If anyone gets out I’ll shoot them”. He gave evidence that he wanted to leave as quickly as possible, however, the security guard had said, “Let us wait till he’s gone”. It was put to him that at no point did the accused say to the robber, “Take it easy mate”. Mr Yildiz responded:

“A: He did say that. He did say that right next to me.”

Mr Yildiz agreed that that did not appear in his first statement to the police.
In cross-examination, Mr Yildiz agreed that he did not mention to police that the accused said to the robber, “Take it easy mate”, in his first two statements on 2 May 2018 and 8 August 2018, but that he included that in his third statement made in December 2020. When it was suggested that the accused did not say those words, he answered:

“He said that, I remember it very clearly that because I found it really strange.”

It was put to Mr Yildiz that the accused said to the robber, “Please calm down, don’t shoot, we’re doing everything you want”, to which he answered:

“A. I don’t remember hearing that. That’s – that’s something I said that, too, that night.”

Mr Yildiz agreed that he said nothing in his first statement about the security guard doing anything that he thought was unusual or strange. It was put to him that the reason for him not saying anything in his first statement about the accused saying or doing anything unusual or strange was because he did not remember anything strange or unusual when doing his statement on 2 May 2018. Mr Yildiz answered:

“A. No, I did remember a lot of strange things, but I thought it would be taken into consideration as in just my assumptions and I had never faced anything like that, like, it just – in this kind of situations, you just need to be sure before you say something.”

It was put to him that he just made up that explanation, which he denied. Mr Yildiz gave evidence that he spoke to police for the first time about things that he noticed that were unusual or strange at the end of the conversation at the police station in Campsie on 2 May 2018. He also denied that his conversations with Satya Kong influenced what he told police on 8 August 2018.
Mr Yildiz was cross-examined about his involvement in the police undercover controlled operation. It was put to him that police told him they suspected the accused’s friend was responsible for the robbery and Mr Yildiz agreed that that was what he was thinking too. He discussed his suspicions with the police, which were not in his first statement. He gave evidence that the police asked him for an DNA sample, and at that time, he assumed that he might have been under investigation for being involved in the robbery. With respect to the controlled operation, he knew that police were asking him for assistance to see if he could get the accused to admit an involvement in the robbery, but the accused never did admit any involvement in the robbery. It was further put to Mr Yildiz that the accused never told him that the gentleman he had been introduced to was his cousin, which Mr Yildiz denied, saying:

“I remembered he told me, ‘he’s my cousin’.”

In re-examination, Mr Yildiz gave evidence that he went to the police station to make his statement around 9 o’clock and got back to the pub at around 2.30pm on 2 May 2018. He was asked about keys to the safes in the manager’s office, one of which he did not have a key for. That was the smaller safe which contained up to $12,000.00, and the key was kept behind the door to the office on a ledge adjacent to the whiteboard.
Mr Yildiz gave evidence that, at the end of each shift, it was his job to put the money from the poker machines into the safe, whereas the licensee looked after the cash redemption machines. That money was put in the other safe by the licensee, Mr Andrews.
Mr Yildiz was asked how the robber communicated to him that he wanted him to open the cash redemption machines, and he answered:

“A. At that point I remember he was being behind me, pushing me, gun I think on my head and he was telling me, ‘keys, keys’, and clearly I understood what he means.”

In further cross-examination with leave, Mr Yildiz was shown CCTV footage from 2 May 2018 at 3.54am, camera 15 in DVR2. It showed the accused crouched at the front doors of the premises trying to lock the front door. There was no re-examination on that evidence and the USB drive containing the CCTV footage shown to the witness was marked for identification as MFI 3. It subsequently became Ex 6.

Evidence of Satya Kong

Ms Kong gave evidence that on 2 May 2018 she was employed as a gaming attendant at the Belmore Hotel. She had been working there for six months, and prior to that, worked at the Banksia Hotel for one year.
Ms Kong gave evidence that she worked night shift at the Belmore Hotel and her hours were normally 6pm to 4am. At closing time, it was her routine to tidy up the gaming area, wipe down the machines, and then collect the money from the 30 gaming machines at Belmore Hotel. On a copy of Ex B, she marked by number the location of each of the poker machines at Belmore Hotel. That document became Ex V.
Ms Kong gave evidence of her routine for retrieving money from the poker machines. The money from each machine was placed in a pencil case which was numbered according to the corresponding poker machine. Each pencil case was placed on a trolley and the poker machine door would be left open. This was done in accordance with instructions given by the manager, Mr Yildiz, to make it easier for the gaming attendant to turn the machine on in the morning. She was also helped by the manager to finish collecting the money on occasions.
Ms Kong gave evidence that the security guard would be present during the process of collecting the money, sitting between both entry doors. On 2 May 2018, that was the accused, whom she had known for the year that she was working at the Banksia Hotel. She worked with the accused at the Belmore Hotel on Monday and Tuesday nights. When she was closing up and collecting money from the machines, he would be sitting on machine numbered 8 in Ex V, facing the doors. The accused did not assist her in the collection of money or the closing procedures. Ms Kong gave evidence that she had no involvement in collecting money from the cash redemption terminals in the gaming area.
Ms Kong was asked:

“Q. … before the robbery was there anything unusual about that particular night that you noticed?
A. Yes.
Q. What was it?
A. The way that Khaled was acting when I was clearing out the money.”

Ms Kong gave evidence that at 8pm that night, a patron had come in whom she felt was a bit suspicious. She gave evidence that he “just came in, walked in, walked around, and then he got a bottle of water and just left”.
Ms Kong gave evidence about the closing procedures which included locking the doors and ensuring that the toilets were empty before she commenced collecting the cash from the poker machines. She was asked:

“Q. On this particular occasion, did you hear any conversation between security and management about the – about closing procedures, insofar as the doors or anything else was concerned?
A. Yes. I overheard Maz ask Khaled if the toilets were all clear and he said ‘yes’, and that’s when I proceeded to do the clearance.”

Ms Kong gave evidence that after she had collected monies from all of the machines, usually she would take the money to the manager’s office and it would be placed in a drop-box safe located on the floor of the manager’s office. There were two other safes in that office which contained money.
By reference to Ex V, Ms Kong gave evidence of the order in which she would collect money from the 30 gaming machines. On 2 May 2018, she started the collection process at machines 21 or 12, but could not recall where the accused was when she started that process. She gave evidence that she noticed when she was at machine 11 and 10 that he did a lap around the gaming room. When she was at machine 7 he did another lap and then when she was at machines 4 and 26, he asked her about closing the gaming doors, meaning doors to the gaming machines. She then gave the following evidence:

Q. Doing your best, what did he say to you, what words did he use?
A. He asked if I needed help closing the gaming doors.
Q. What did you say?
A. I said, "No, Maz wanted it this way".
Q. Had he ever asked you that before?
A. No, he has not.
Q. Okay and then what happened?
A. And then I continued on to machine 18 to 24 then the other row which is 14, 13, 9, 30, 16 and 15. And once I got to machine, I started on machine 8 and because I couldn’t bend the stack door I proceeded to machine 28 and 27 and that's when I heard Khaled say my name.
Q. What did he say?
A. He just said Sasha.
Q. When he said Sasha what did you do?
A. I turned around and that's when I saw the armed robber holding the gun against them.
Q. Against him?
A. Against Khaled sorry.
Q. Firstly, can you describe, the armed robber, could you describe him?
A. He was roughly 170 to 180 centimetres. He was wearing all black, black beanie, black scarf around his face, completely like, black jumper, black pants. What I remember was a brown sort of Timberland style shoes and black gloves.
Q. Can you describe his build?
A. He was a medium size build.
Q. Are you able to describe the gun he was holding?
A. It was sort of a black pistol, pistol gun.
Q. Can you tell us what happened from the time Khaled said your name and you saw the armed robber with the gun?
A. From then I turned around. From behind the pillar, stopped and looked and then the guy robber had, came up and grabbed me by the shirt and dragged me, me and both Khaled towards the middle of the gaming room which is between machine 26 and 24. Told us to get on the ground and give us, give our phones to him.
…
Q. Did, what did you do with your telephone?
A. I took it out of my back pocket and gave it to him.
Q. What did he do with it, if anything? Did you see what he did with your phone?
A. He grabbed both of our phones and then told us to proceed towards the gaming bar.
Q. What sort of a phone did you have?
A. I had an iPhone 6.
Q. He told you to proceed to the gaming bar. What words did he use, do you remember?
A. I don't remember what words he used no.
Q. So what happened next, did you go to the gaming bar?
A. Yes. So when we walked to the gaming bar Maz came out of the office and we all stood there, he looked at us like, in shock, thinking is this actually happening. And then once he realised that yes, it's happening that's when the gunman proceeded to push both me and Khaled towards the opening of the gaming bar.
…
Q. You were, right so, what's the next thing that happened?
A. The next thing that happened was he told Maz to get on the ground then told both me and Khaled to go in. I felt the gun behind my back, on the back of the neck. He then asked Maz, "Phone, phone, give me your phone," and Maz didn’t hear him properly so the robber had hit him a few times and that's when I said, "Maz, he wants your phone, give him your phone." So he grabbed his phone out of his back pocket and gave it to the robber.
Q. Just to pause there for a moment. You said you felt a gun at the back of your neck?
A. Yes.
Q. Tell us about that. What do you remember about the gun being put at the back of your neck?
A. When it was put behind the back of my neck I did hear a few rattles of it which made me believe that it was fake but I didn’t want to do anything or say anything about it.
Q. Could you feel it?
A. Yes, I could feel it.
Q. Can you describe how it felt?
A. It felt pretty bad so--
Q. You said sounded, sorry, tell me again how it sounded, what you heard?
A. I heard rattles.
Q. Rattles?
A. Yeah, so to me it sounded fake, yeah.
Q. To me it sounded fake?
A. Yes, like it was a fake pistol.
Q. In terms of the, it had been pointed or held at the back of your neck, what did it feel like? What did the gun feel like on your neck?
A. It just felt like hard plastic.
Q. Hard plastic?
A. Yeah.
Q. ..(not transcribable).. Maz handed over his phone?
A. Yes. And then the robber then put our phones into the bin which was right next to us.
Q. Which was where sorry?
A. Which was right next to us.
Q. Feel free to have some water, are you okay?
A. Yeah.
Q. How long did you have the gun pointed at the or held at the back of your neck?
A. It wasn’t that long, it was only for a few second and then he focussed his attention on Maz.
Q. Before that had you seen Maz hit with that gun?
A. Yes.
Q. What part of the, what point was that?
A. It was when Maz was lying on the floor and didn’t give the phone to the robber when he asked.
Q. The phones are in the bin what happens next?
…
A. He then told us to get up. So I was, first was I think, he told us to get up and then we proceeded to go to the middle back to machine 26 and 24, then he asked Maz to go on the floor and Khaled as well. He gave us - when he asked them to get on the floor he gave me a black bag to put the pencil cases in there.
Q. Did he say anything to you?
A. He just said “money, get money.”
Q. You were standing up at that point?
A. Yes, I was.
Q. And Maz and Khaled were on the--
A. On the floor, yep.
Q. You gave an answer earlier that you’d said after the phones were in the bin the focus was on Maz from what you could see?
A. Yes, the main focus was all on Maz.
Q. Why do you say that?
A. Because he was - he only grabbed Maz. The gun was only pointed at him and the machine. It was really pointed to me or - and it wasn’t really pointed at Khaled as well.
Q. So, you’re in a standing position when you were given, you said, a black bag?
A. Yes.
Q. Had you seen that black bag before?
A. No, I have not.
Q. Did he give it to you or show it to you or what happened with the black bag?
A. He just gave it straight to me.
Q. Did he say anything?
A. That’s when he said, “Money, get money. Get the money.”
Q. What did you do when he said that?
A. So, that’s when I proceeded to the trolley that had the containers with the money.
Q. Where was that?
A. That was between machine 28 and 27.
Q. What did you do?
A. That’s when I proceeded to go to the trolley and get the pencil cases out of the trolley and into the bag.
Q. How many pencil cases?
A. There was - in the trolley there was only 27 because I did not finish taking the money out of 27, 28 or 8.
Q. What did you do with the pencil cases?
A. The pencil cases, I put them in the bag.
Q. The pencil cases, the remaining pencil cases?
A. I left them on the chair.
…
Q. What did you see Khaled do?
A. He had gotten up and collected the pencil case, 27 and 28 and threw a pencil cases at me to put them in the bag.
Q. Did you hear anything at that time?
A. After about - that’s when the robber yelled out to him to get back on the floor.
Q. What words did he use?
A. I don’t recall what he had said.
…
Q. Once you had put the money on the bag what did you do with it?
A. That’s when I gave it to the robber.
Q. What happened then?
A. After that he then told Maz and Khaled to get up and told us all to go to where the CRTs were.
Q. By CRT do you mean cash redemption terminals?
A. Yes.
Q. Yes?
A. And then told Maz to open up the machine, but you need a key to open that machine up, so after that he then grabbed Maz and said, “Money, give me the money.” Maz said, “I need a key. Key. I need the key.” So, we all walked towards the gaming bar where the cash redemption terminal keys were.
Q. You see the gaming bar on the map there?
A. Yes.
Q. Is that the area near the manager’s office, just outside the manager’s office?
A. Yep.
Q. So, everybody went there with the robber.
A. Yes.
Q. And then what happened?
A. When we got there the robber had walked with Maz behind the bar while both me and Khaled were in front of the gaming bar. Maz then proceeded to get the keys out of the till and then came from around the gaming bar and walked back to where the machines were again.
Q. Prior to that happening did you know where the cash redemption keys were kept?
A. Yes.
Q. And then what happened?
A. And then after that Maz then opened the first CRT machine and taken out its stacker box while the robber was saying, “Hurry up. Hurry.” And because Maz was shaking he said, “I couldn’t, I’m shaking.” That’s when Khaled said, “Hurry up,” so that he can go.
Q. How did Khaled sound when he said that?
A. A bit annoyed.
Q. Yes.
A. Then after that Maz had taken out the money out of the first box and then proceeded to the next CRT, which is right next to it, opened that, took out the cashbox and the money and then put it in the bag as well.
Q. Where was - did you see the gun at that point?
A. The gun was still pointed at Maz.
Q. Then what happened?
A. Then after all the money was put in the bag that’s when the robber had said, “Bathroom.” So, we all proceeded to go to the bathroom and after that he said that if we opened the door that he was going to shoot us.
Q. And when you say “bathroom” are you talking about the unisex disabled toilet at the back of the hotel?
A. Yes.
Q. And then what happened?
A. Then after that we were in there and Maz was going to open the door to see where or if the robber had left. That’s when Khaled stopped him from opening the door and said, “Wait, he might still be here. He might still be in the office taking the money from there.” And that’s when Maz waited just a little bit longer and he opened the door and both Maz and Khaled walked out the door to see where the robber had went or if he had left.
Q. Doing your best, how long do you think you were in the bathroom before the door was opened?
A. Probably only for around for two to five minutes.
Q. What was it?
A. Two to five minutes.
Q. And then what happened?
A. And then after that I was still in the bathroom, so both Maz and Khaled came in and told me that he had left.
Q. What happened next?
A. After that we - I tried going through the gaming bar to dial triple-0, but it didn’t go through, so we got our phones out of the bins and Maz called the police.
Q. Did you have any conversation with Khaled between that time and the time the police arrived?
A. No, it wasn’t until after the police had arrived.
Q. What was the conversation?
A. He had asked me how much do you think the robber had left with.
Q. In terms of the robber, how many times did you hear the robber speak during this incident?
A. There was only roughly around five or six times.
Q. What can you say about his voice, if anything?
A. He had a deep voice and he sounded Middle Eastern.”

Ms Kong was asked further about the evidence she gave earlier about the accused acting unusual on that particular night when she was clearing out the money. She gave the following evidence:

“Q. What way was Khaled acting?
A. He looked very agitated, a bit nervous, because he never used to walk like around the gaming room, he stayed in one spot, never asked to help or anything like that, so that’s what I found strange with the offering of help and the constant keeping an eye on me.”

Ms Kong gave evidence that after police arrived, she gave them permission to access her telephone for the purposes of a Cellebrite extraction. They also seized her shirt because the robber had grabbed her by the shirt when he first saw her. She gave a statement to police on the day of the robbery.
Ms Kong gave further evidence that during the time she had been working with the accused at Belmore Hotel, a week or so prior to the robbery, he introduced her to a friend as “Ibby’s cousin”, “which is a security guard who I used to work with at Banksia Hotel”. That person was Ibrahim Droubi. The person who had been introduced to her had come into the hotel a few times prior to the robbery to play the gaming machines and drink. She had later identified them when showed stills by Detective Lindsay from the CCTV footage. She identified him on two photographs which became Ex W. She also marked on Ex V the location of the bin where the mobile phones were placed.

Two further still photographs were shown to Ms Kong, from which she identified a regular at the hotel by the name of Andrew and his friend. They became Ex X.
Finally, the CCTV footage, Ex Q, was played for the witness from 4.21:45 to 4.25:05. Ms Kong gave evidence that in that footage she was shown shutting down gaming machines 14, 13, 19 and 30, which were the poker machines closest to the storeroom area. In cross-examination, Ms Kong gave evidence that prior to Mr Yildiz becoming manager, there was another manager by the name of James Leatherbarrow, who she understood got fired for stealing money from the safe in the manager’s office.
Ms Kong agreed that she and the accused had worked about 10 shifts together at the Belmore Hotel before the robbery, but that she had known the accused from the Banksia Hotel where they had worked together.
At the Banksia Hotel, while they were working together, Ms Kong agreed that there were a couple of occasions when the accused had helped her collect cash from the poker machines. When she started working at the Belmore Hotel with the accused she was quite familiar with him and talked to him about a number of matters. She agreed that on the night of the robbery she had a discussion with the accused about James Leatherbarrow being sacked because he had stolen money from the hotel. She agreed that she was quite comfortable with the accused on that night.
Ms Kong further agreed that during the clearing of cash from the poker machines, the accused would sit on machine number 8, but it was not the only machine that he would sit. She gave evidence that at times he would be sitting on the bench near the side door, but prior to the robbery she did not remember him walking around the gaming area while she was emptying money from the poker machines. She agreed that it was possible that he did, but she did not notice.
Ms Kong was cross-examined about [19] of the statement she made to police on 2 May 2018. She then identified on a photograph the gentleman she described in that paragraph as the person who came into the hotel around 8.30pm, who she had earlier described in her evidence as acting unusually. The photograph became Ex 1. Ms Kong gave evidence that she had kept an eye on that person whilst he was in the gaming room for a few minutes, however, she had never seen him before or since. She told police about him because he seemed suspicious.
Ms Kong gave evidence that in her second statement to police made on 1 August 2018, she had told police about the presence of the person she identified as Andrew “after they asked me who he was in the photo”.
Ms Kong was cross-examined about the doors to the storeroom and gave evidence that it was not open to the public, but the storeroom door was not locked. She could not remember whether she entered the storeroom on the night of the robbery and was shown footage from MFI 3, in which she was depicted entering the storeroom, and having refreshed her memory, gave evidence that she would have most likely have gotten food for gaming, meaning to serve finger food to people who were playing the gaming machines.
It was put to Ms Kong that on the night of the robbery, it was the first time that she had left the poker machine doors open in the presence of the accused, which she denied. She agreed that during the closing procedure, the accused was walking around the gaming room, but could not recall that he had done that on previous shifts. She agreed that it might have been possible and was something that she had not thought about.
It was suggested to Ms Kong that there was nothing unusual about anything that the accused was doing that evening, with which she disagreed.
Ms Kong gave evidence that she had a conversation with the accused on that evening about the new system, which involved leaving the poker machine doors open. That was the first of any conversation she had had with the accused about the new system.
Ms Kong was asked about the accused walking around and doing laps while she was collecting money from the machines. She did not have a conversation with him about that, and did not ask him why he was doing it. Nor did she complain to the manager about that.
It was suggested to Ms Kong that at closing the manager did not ask the accused to check the toilets, to which she replied, “He did”. She gave the following evidence about the robbery:

“Q. The man with the gun, the robber, he told you and Khaled to get the money, didn’t he?
A. No, he didn’t.
Q. Didn’t he say, “Money. Get me money”?
A. He specifically said it to me.
Q. And he was yelling?
A. Yes.
Q. And he was - he had a gun in his hand while he was saying these things?
A. He didn’t point it at me.
Q. But that was pointed at someone?
A. Yes.
Q. And he was saying, “Money. Get money”?
A. Yes.
Q. It’s the case, isn’t it, that you put some of the money in the bag?
A. Yes.
Q. And the money was in pencil cases?
A. Yes.
Q. And Khaled put some of the pencil cases in the bag?
A. Yes.
Q. And Khaled gave you a pencil case; is that right?
A. He gave me two.
Q. And at that time the robber was holding a gun?
A. Yes.
Q. And he was saying things about, “Get me money. Get me money”?
A. He only said it - he only demanded it once or twice.
Q. Now, in relation to the gun, is it the case that it was - it was a dark gun?
A. Yes.
Q. And is it the case that it was all black?
A. Yes.
Q. No other colours that you could see.
A. No.
Q. Is that right?
A. No.
Q. Now, I understand that the robber took you, Khaled and Yilmaz to the bathroom; is that right?
A. Yes, that's correct.
Q. Just before the robber closed the door and left--
A. Yeah.
Q. --he said, "If anyone gets out I'll shoot them"?
A. Yes.
Q. And he was holding the gun at that point?
A. Yes.
Q. Do you remember Khaled saying, "Let's wait until he's gone"?
A. Yes, he did say that.”

Ms Kong gave evidence that the accused never returned to work after the robbery and that she had not spoken to him since 1 August 2018. She agreed that she had spoken to the manager Yilmaz Yildiz on a number of occasions and that Yilmaz had told her he had suspicions about the accused. The first conversation was not either on the day of the robbery or shortly thereafter. She had discussed the robbery with Yilmaz only once or twice since.
In respect of the man who the accused had introduced her to as Ibby’s cousin, it was put to Ms Kong that what the accused told her was that the man was “me and Ibby’s cuz”, which she denied.
Ms Kong was asked further about the statement she made to police on 2 May 2018. At [27], she agreed that she had said nothing to the police about the accused being agitated or nervous in that paragraph. Further, she agreed that nowhere in her statement did she say anything to police about the accused being agitated or nervous. She agreed that it was possible with the passage of time that she may have been mistaken about that.
Ms Kong also agreed that the only time the accused sounded frustrated on that evening was when she was talking to the manager about trying to open the CRT machine. She gave the following evidence:

“Q. Now, is that at a point when the robber was screaming at Yilmaz?
A. Yes.
Q. And was that at a time when the robber had a gun pointed at Yilmaz?
A. Yes.
Q. And was that at a time when the robber seemed agitated?
A. Yes.”

Ms Kong was further asked about [55] of her statement in which she used the words, “Khaled sounded impatient”. She was asked:

“Q. Would you agree with me when I say that this was a long time ago?
A. Yes.
Q. So it was close to three years ago?
A. Yes.
Q. Would you agree with me when I say that it may have been that Khaled sounded frightened when he asked Yilmaz to hurry up?
A. No.”

In re-examination, Ms Kong agreed that she had taken two weeks off work following the robbery and worked until December 2018. She gave evidence that at one point during the closing procedure, when she was collecting money, she had moved the trolley closer to her when the accused was walking around the gaming room. She was asked:

“Q. Why did you do that?
A. Because I felt unsafe at that point.
Q. Why?
A. Because he was lingering a lot more.”

On Ex V Ms Kong marked the location of the bench near the side door, about which she had given evidence.

Evidence of Constable Jin Choi

Constable Choi attended the Belmore Hotel with Senior Constable Elphege at 4.38am on 2 May 2018. Upon entering the hotel, he identified the accused (as the security guard), the night manager and a female gaming attendant. He spoke with the accused and obtained a version of events from him, which he recorded contemporaneously as follows:

"About 4.15am I was in the stock room. There is a door there that is closed but not locked. I was doing my usual checks for close of day and about halfway inside the room I had just turned around when someone came up behind me and placed what I believe to be a gun against the back of my head and said, 'Don’t move,' and then said, 'Phone, phone, phone.' I gave him my phone and he pushed me up out of the storeroom towards the counter in the VIP room.
He saw Satya the attendant and said, 'Get on the floor, phone, phone, phone." Manager was behind the counter and had his hands raised in the air when he saw this. The robber did the same to the manager and got his phone as well. I was also on the ground lying faced down and he got us to move around together to open the machines to give him money. He then put us in the toilet and said, 'If you go out I will shoot you.' I waited for about two minutes before coming out. I didn’t exit straight away and saw a four-wheel drive drive away. The man was 180 to 185 centimetres wearing long pants and long shirt. He had long hair, black, that was in a ponytail. He was wearing red gloves. His voice was deep so I thought it was a man. I went to check the storeroom because it was partially ajar. He didn’t speak big words, so I’m not sure about the accent. It just sounded Aussie. It all happened in about three minutes. He didn’t go anywhere else in the hotel. I think he was waiting in the storeroom. I’m not sure about the model of the car, just a four-wheel. It was dark, so I’m not sure about the colour. He had sunglasses on and I’m not sure how he covered his face. All I saw was black. I think his shoes were yellow. All I remember and saw was his long hair. I remember he also said, “Faster, faster.” He initially struck me in the back of my head before the storeroom.”

He then recorded the accused’s details including his address and mobile number ending in 020.
In cross-examination, Constable Choi agreed that he was not there to take a statement from Mr Itani and that he did not give the accused a chance to read the statement, nor did he read it back to him. He was a Probationary Constable and gave evidence that he was instructed to obtain a version of events so that he could provide detectives some idea of what occurred. He wrote the version down as he was speaking to the accused.
There was no re-examination.
During the Crown case and at the conclusion of the evidence of Constable Choi, the accused made an application that the evidence in Ex N should be excluded retrospectively, and that the Crown should not be permitted to adduce two further pieces of evidence, namely:

A six page document of screenshots taken from the accused’s phone, which included three photos of minor damage to a vehicle the Crown alleges was used by the accused and Omar Saadallah on 27 April 2018 when it was involved in a motor vehicle accident, together with messages sent from the accused’s phone, including photographs sent to Ibrahim Droubi: Ex D on the voir dire.

A four page document containing photographs taken of emails sent from the accused’s phone to two individuals and one corporation regarding the purchase of either a toy gun or a toy gel blaster pistol, alleged by the Crown to have taken place prior to and on 27 April 2018: Ex E on the voir dire.

Evidence was called on the voir dire and submissions made by counsel for the accused and the Crown. On 2 February 2021, I made the following orders:

The retrospective objection to exhibit N previously admitted without objection is overruled.

The Crown be permitted to adduce into evidence documents contained in exhibits D and E on the voir dire.

Subject to objection, evidence on the voir dire will become evidence in the trial.

What follows are my reasons for making those orders.

Reasons for judgment on the voir dire

The application was brought pursuant to s 138 of the Evidence Act 1995. The basis was that the evidence contained in the three exhibits referred to above was improperly obtained or obtained in contravention of an Australian law, or alternatively, was obtained in consequence of an impropriety, or of a contravention of an Australian law. Further, the desirability of admitting the evidence was not outweighed by the undesirability of admitting the evidence, having been obtained in that way. Thus, the accused submitted the evidence should be excluded.

Evidence on the Voir Dire

The Crown called Detective Senior Constable Fretten to give evidence on the voir dire. As at 2 May 2018, he was a Senior Constable attached to Campsie Police Area Command and at 4.30am he received a phone call that there had been an armed robbery at the Belmore Hotel. After a briefing at Campsie police station, he attended the Belmore Hotel where there were already a number of uniformed police present.
Detective Fretten spoke to the night manager, Mr Yildiz, and collected his shirt which had been touched by the armed robber, and placed it in an exhibit bag. He also spoke to the bar attendant, Ms Satya Kong, reviewed some CCTV footage and spoke to the accused. The accused also reported that the armed robber had touched his shirt. Detective Fretten took his shirt and placed it in an exhibit bag. The accused was then driven to Campsie police station for the purpose of making a statement. Detective Fretten then gave the following evidence:

“Q. Did you then take Khaled Itani’s mobile phone?
A. Yes, I did.
Q. Do you recall at what point, having regard to the taking of that statement, you took the phone?
A. I don’t recall exactly the timing. It may have been after taking the statement. I’d say it would have been after I’d taken the statement.
Q. What was the reason for taking the phone?
A. Khaled had told me that the phone had been handled by the person who committed the robbery and I believed that it had some - again, some forensic value for the investigation to help identify any offenders.
Q. Tell his Honour what happened at that point?
A. When I did mention that we were going to seize his phone he did become nervous and requested that he could delete some photographs from his phone, and I declined him to do that.
Q. Why did you decline?
A. Because that - for starters, we didn’t want him handling the phone again because I didn’t want him handling the phone again because it could contaminate any forensic evidence on the phone. Secondly, I guess his nervous behaviour sort of made me - it raised some suspicion with me as to why he felt the need to delete things from the phone once I mentioned that we wanted to see the phone. And we didn’t want anything seized from the, sorry, we didn’t want anything, sorry, deleted from the phone before it was returned.
Q. What suspicions did it raise with you?
A. I guess I didn’t know, the fact that he wanted, he didn’t want things seen by police that was on that phone so to me that raised a suspicion that he was trying to hide something, potentially trying to hide something and that just drew my attention so--
Q. After you declined to, declined his request did you ask him for the PIN code to that phone?
A. Yes, I did.
Q. Did he give it to you?
A. Yes.
Q. What did he say do you recall?
A. Yeah, he said it was 535666.
Q. 535666?
A. Yes.
Q. Did you ask him whether he needed any phone numbers on his phone prior to police examining the phone?
A. Yes, I did.
Q. Did he tell you no?
A. That's correct.
Q. Why did you ask him that?
A. Because I knew we were taking his mobile phone, if he needed to contact friends, relatives, loved ones. After what had happened he might have needed to contact family to either be picked up or to explain what had happened.
Q. After you took a statement from Mr Itani did you ask whether he would consent to a forensic procedure by way of buccal swab?
A. Yes, I did.
Q. After you explained the various things to him, the forensic procedure information sheets et cetera, did he consent to a forensic procedure being performed?
A. Yes, he did.
Q. It was carried out about 2.30am?
A. That's correct.
Q. Then did Mr Itani tell you he was going to be picked up from the police station by his brother-in-law?
A. Yes, he did.
Q. Did he leave the police station shortly afterwards?
A. Yes, he did.
Q. Once he'd gone what happened?
A. I tried to use the PIN code that he supplied me for the mobile phone and it was an incorrect PIN code, it didn’t work for that phone.
Q. As a result of discovering that what did you do?
A. I contacted his partner Zahara, I had her phone number and requested her contact Mr Itani's brother-in-law's phone to see if he could find that, the correct password for that phone so we could get the process under way so he could get his mobile phone back.
Q. Do you mean password or PIN code?
A. PIN code sorry.
Q. Did Zahara say anything to you?
A. She said, she said to me, "My brother-in-law you mean, sorry, by his brother-in-law you mean my brother in Adelaide?"

Detective Fretten gave evidence that at 2.50pm on 2 May 2018, he called the accused’s partner again and had a further conversation with her.
Detective Fretten gave evidence that at 1.30pm on 2 May 2018, the accused came to Campsie police station and had a further conversation which was recorded in his police notebook in the following terms:

“Khaled returned to collect his phone. I advised him that I needed his PIN code to access it before we could download it and return it. Khaled gave me the PIN code of 353666. Khaled asked, 'Can I get some phone numbers from the phone?' I said, 'I asked you what numbers you needed when I got your phone earlier and you said none.' I said, 'What numbers do you need today? We might be able to have your phone back by the end of the day.' He said, 'If you give me my phone I can get the phone numbers.' I said, 'I can't give you your phone back until it's been examined'."
Q. Did you form any view in relation to the phone when he said the words to you, "If you give me my phone I can get the phone numbers"?
A. Sorry, the question at the time when he said that?
Q. Yes.
A. Yeah, I thought that was raising some suspicion there as he already told me earlier on that he didn’t need any phone numbers and then when I've asked him what numbers he does need instead of, I don't know, telling me what numbers he did need and then me facilitating that request, him requesting that he handles the phone to me was raising some suspicion there. He didn’t need to handle the phone for him to get what he wanted. I could have facilitated that and we could have still preserved the evidence.
Q. Excuse me, sorry. And what suspicions did it raise with you?
A. I just, it seemed like his earlier request to delete some photos and now his request of wanting to handle the phone to me seemed like he was possibly trying to hide something, maybe disposing some evidence of something, I don't know whether or not he'd be maybe hiding something or trying to get rid of something.
Q. So at 1.30pm he's given you 353666?
A. That's correct.
Q. Earlier he’s given you 535 666?
A. Yes.
Q. When he gave you that number what did you do?
A. Mr Itani had left the station. I went to see if that PIN code for that - that he had then provided 353 666 activated the phone and unlocked it and it didn’t unlock it, so it was the correct PIN code.

Nor am I satisfied beyond reasonable doubt that the armed robber was Omar Saadallah. First, the armed robber was heavily disguised. He was wearing clothing that was entirely different from the clothing worn by Omar Saadallah when he visited the hotel premises earlier that evening. The armed robber also appeared to have long black coloured hair, tied in a ponytail at the back, whereas Mr Saadallah was either bald or had his head closely shaved whilst he was in Australia. I do not accept the Crown contention that the hair of the armed robber, as depicted in the CCTV footage, was obviously a wig. I am mindful of the caution with which a trier of fact must approach such identification evidence, in accordance with the High Court’s decision in Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13.

The Crown also relied on evidence derived from mobile phone providers and summarised in Ex AJ, to demonstrate that Omar Saadallah was in Belmore, and therefore in the vicinity of the Belmore Hotel, just prior to the armed robber entering the hotel at 2.35am, and that he was also in Belmore, and therefore in the vicinity of the hotel, following the armed robbery which took place at 4.23am. What Ex AJ also demonstrates is that at 12.55am the accused sent Mr Saadallah a message saying, “can u pick me up tonight?” At 4.42am Saadallah sent the accused a message saying, “Are u done?”, and another message at 4.50am saying, “i’m outside when you’re done”. At 5.28am, the accused sent Saadallah a message saying, “ill be late bro cz we got rubbed”. Saadallah replied at 5.29am saying, “should i leave? or wait for you?” At 5.29am, Saadallah sent another message, “should I come back later?”

This evidence does not support the Crown case. Rather, it provides some exculpatory evidence consistent with Omar Saadallah not being the armed robber and is therefore consistent with the accused’s innocence.

I find that the accused did lie to the police in his record of interview about his relationship with Ms Michails ending after one month, and about Omar Saadallah staying with them for “six or seven days”.

Findings based on the accused’s banking records and expert evidence of Ms Tran

I am satisfied on the basis of the analyses by Ms Tran of the accused’s banking records, that prior to the robbery on 2 May 2018, the accused had sources of income far in excess of his reported income to the Australian Taxation Office. The accused clearly was involved in gambling and sums deposited into his account on a weekly basis were capable of characterisation as wages, particularly those from the Flemington Markets.
The analyses of Ms Tran demonstrated that more money was paid into his various accounts in the four months leading up to the robbery, than was paid in during the five months following. I am also satisfied that the accused lent money to others from time to time and received repayment of those loans, both before and after the robbery. An example of that was the monies he loaned to Mr James Leatherbarrow, the former manager of the Belmore Hotel, whose employment was terminated following his admission that he had stolen funds from the owner of the hotel. There were other transactions in his banking records supporting such loans.
The evidence of Mr Brosnan corroborated the accused’s statement that he won substantial amounts of money at times on the poker machines and on 5 May 2018, three days after the robbery, the accused won $6,201.
Having regard to the whole of the evidence relating to the financial analyses by Ms Tran, I am not satisfied that the Crown have established their contention that following the robbery, the accused was shown to have unexplained wealth. The evidence merely established that the source of funds paid into his accounts was unexplained. Nor does the evidence of payments made to his credit cards establish that those monies were paid from the proceeds of the robbery. The financial position of the accused following the robbery was demonstrated to be not very different from his financial position prior to the robbery, with the exception that his expenditure on gambling decreased following the robbery.
I am satisfied that it was the accused who provided Ms Michails the sum of $4,774 to transfer to Mr Saadallah’s wife in Canada on 9 May 2018. Whilst the source of that money remains unexplained, the payment of itself does not advance the Crown’s case other than to arouse suspicion. I am unable to make any finding in respect of the previous payment of $5,000 made by the accused’s step-son to an unknown person in Canada, several days earlier.

The post-event exculpatory conduct of the accused

Constable Choi arrived at the Belmore Hotel a short time after the robbery at 4.38am. He spoke to the accused who told him that he had gone into the storeroom because he had noticed the storeroom door was partially ajar. When he had turned around to leave the storeroom, the armed robber had come up behind him and placed what he believed to be a gun at the back of his head, before taking his mobile phone and pushing him up the stairs and into the gaming room. Detective Braz also obtained an account from the accused when he arrived at the hotel at 5.25am. The accused gave him a similar account.
The accused was taken to the police station to make a statement on 2 May 2018. His statement became Ex S. In that statement the accused had told police that on Monday 30 April 2018 he was working at the Belmore Hotel when he was approached by two middle eastern looking men, one of whom had asked him whether the cameras in the hotel were linked to the police station. The accused told them they were. The accused then told police that he had seen another man of middle eastern appearance in the hotel on Tuesday 1 May 2018, who had black coloured long hair which was tied at the back into a ponytail which sat high at the back of his head. The man had lost a large amount of money before he left the hotel at 3am. The accused then gave an account of what occurred after the hotel had been closed and the poker machine attendant started clearing the machines. He described the armed robber as about

“182cms tall, of a big build, in a dark black coloured thing covering his whole face. I couldn’t see his eyes or his mouth at all. The man had long hair which was tied back in a low ponytail. The ponytail went down to the man’s shoulders. The colour of the man’s hair was black. The man was wearing black coloured clothing covering his upper body with no symbols on it. The man was wearing tracksuit pants, but I don’t remember the colour. He was wearing yellow coloured boots like workmen’s boots. I didn’t see any symbols on the man’s pants or shoes. The man was wearing red coloured gloves covering his whole hands. The man yelled, ‘Don’t look at me or I’ll shoot’.”

The accused told police that he was scared the man was going to shoot him, that he was holding a gun which was shiny and black.
The accused told police that when the manager Mr Yildiz was getting money from the exchange machine, he observed the robber getting impatient and he said to him, “Please don’t hurt anyone. We will give you whatever you want.” After the manager had given the robber money from the machine, the robber had pushed all three of them towards the back of the hotel and into the disabled toilet saying, “go inside, if anyone goes out I shoot”.
The accused told police that they stayed in the disabled toilet for about two minutes, when Mr Yildiz told him to leave, however, he said to the manager, “we should stay in here more”. When they left the disabled toilet the police were called.
In July 2018, police conducted a controlled operation involving Mr Yildiz. The accused met with Mr Yildiz, who attempted to blackmail him for a sum of money in return for Mr Yildiz not disclosing to police that he thought the accused and Omar Saadallah were responsible for the robbery. That meeting was lawfully recorded, however, the accused denied being involved.
On 12 July 2018, the accused participated in a video recorded walk-through with police at the Belmore Hotel, during which he made no admissions. The walk-through was consistent generally with what he had told police in his statement Ex S.
On 22 August 2018, the accused participated in an ERISP with the police as a suspect. In that interview the accused told police the two lies referred to above, namely, that he broke up with his girlfriend Ms Michails after one month or so, and secondly, that Omar Saadallah stayed with him at Ms Michails’ apartment at Campsie for six or seven days.
In that interview, the accused told the police that he had been with Mr Saadallah when he had an accident in his hire car. He also gave police an explanation as to why Ms Kong may have told them that he had introduced Mr Saadallah to her as Ibrahim Droubi’s cousin. He told police he usually kept checking the premises whilst Ms Kong was emptying the machines, and that he always checked the toilets “a lot of times”. He also told police that he had had a conversation with Ms Kong about closing the machine doors.
When police put to him that Ms Kong had told them in her statement at [49], that she saw the accused pick up pencil cases from the stool in front of machines 27 and 28, and throw the two pencil cases to her to put them in the bag, the accused said:

“I don’t know why she’s doing this, putting me like, I don’t know. Okay, the chair, it was, the, the, the poker machine was like this. This chair and this chair. There, there was bags here and bags here. He told us both to get the money. So I picked up this one, she picked up this one. This is what happened.”

The accused denied saying to the others in the bathroom that the robber might be in the office taking money, but agreed that he had told them, “wait, just wait, let, let us wait until he’s gone”. He also agreed that he had asked Ms Kong, “how much money do you think they took?”
The accused was also asked about a number of things Mr Yildiz had said, and gave police a lengthy recitation of what had occurred when Mr Yildiz had met with him and told him that he believed that he and Mr Saadallah had committed the robbery and that unless he paid him money, he would go to the police.
Moreover, the accused had already told Detective Senior Constable Lindsay about this occurring, and at no time prior to his ERISP interview did the police make the accused aware that it was the police who had run this meeting as a controlled operation.
When asked how he could afford to gamble and live when he had not worked since the robbery, the accused told the police that he was using money on his credit cards, but that he had also won money and people had repaid him loans he had lent.
When asked whether he had any information as to who may be responsible for the robbery at the Belmore Hotel, the accused said to police, “I swear I didn’t do anything, I didn’t know anything about it.”
When asked where his friend Mr Saadallah was that night, the accused said that he was with a girl he described as “the Persian girl”. He also told police that Mr Saadallah had called him when the police were at the hotel, wanting to come and pick him up, and that he was next to the hotel after the incident. That was borne out by the phone evidence in Ex AJ.
Further telling evidence exculpatory of the accused, was that the armed robber was shown on CCTV on the phone as he entered the hotel and subsequently as he entered and exited the disabled toilet inside the hotel. Detective Senior Constable Lindsay gave evidence that there was no CCR evidence linking the accused and Mr Saadallah making phone calls to each other at that time. The Crown contention that they could have been communicating by other formats such as WhatApp or Viber, could only be mere conjecture not based on any evidence.
Finally, the accused was entitled to rely on his good character limited to the extent that he had no criminal convictions for offences of dishonesty, violence or involving firearms.

Determination

I am not satisfied that the Crown has proved its case beyond reasonable doubt against the accused Khaled Itani on a number of bases. First, I’m not satisfied beyond reasonable doubt that the Crown has established that the replica handgun sold by Mr Xie on 27 April 2018 was the weapon used by the armed robber at the Belmore Hotel on 2 May 2018. Notwithstanding the suspicion that may be aroused as a result of the searches conducted on the accused’s phone as to the availability of toy guns, and his location at Beaumont Hills when the transaction took place, even if it could be established that it was the accused who purchased the replica gun, the Crown has failed to establish that it was that gun that was used in the robbery.
Secondly, the Crown has failed to establish that the armed robber was in fact Omar Saadallah, for the reasons outlined above. I am not satisfied beyond reasonable doubt that the armed robber was Omar Saadallah, and these two facts were indispensable to the Crown case. On this basis, the Crown has failed to establish two critical links in the chain in its circumstantial case, which on that basis, must fail.
In any event, I am not satisfied that the Crown has established that the accused was involved in a joint criminal enterprise with Omar Saadallah to carry out the robbery at the Belmore Hotel. Joint criminal enterprise was explained by the High Court of Australia in McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 at [12] as follows:

“12 The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.”

Here, the Crown has failed to establish that the accused and Omar Saadallah reached any understanding or arrangement amounting to an agreement between them to commit the robbery at Belmore Hotel. There is no direct evidence establishing such an agreement, and it cannot be inferred from all of the circumstances.
The Crown relied on the suspicions expressed by the manager Mr Yildiz, and the poker machine attendant Ms Kong, as to some of the conduct of the accused on the night in question. Cross-examination revealed that those suspicions were not expressed to the police at the time each witness made their statement immediately after the robbery, but were expressed in statements made months after the robbery. To add to that suspicion, the Crown also relied on the lies told by the accused to the police, not as consciousness of guilt, but going to the accused’s credit. Also suspicious, according to the Crown case, were the financial transactions referred to above, including a payment of $5,000 into Ms Michails’ account on 27 May 2018 which was subsequently expended on the accused’s credit cards by three separate payments, a payment of $4,000 to Audi Australia in respect of the purchase by the accused’s wife of an Audi vehicle following the robbery, and the two Western Union transfers referred to above. However, it is trite to say that suspicion, not even grave suspicion, can be a substitute for proof beyond reasonable doubt. Further, in R v Baden-Clay, supra, the High Court said at [46] and [47]:

“46 The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v R, Gibbs, Stephen and Mason JJ said:
‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v R. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v R. see also Thomas v R.’

47 For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’ Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.’ The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”

Leaving aside the failure by the Crown to prove beyond reasonable doubt the two intermediate facts which are indispensable to the Crown’s circumstantial case, having regard to the whole of the evidence here, the guilt of the accused is not the only rational conclusion that may be inferred. Rather, there is an inference consistent with the accused’s innocence reasonably open on the whole of that evidence. That inference is available notwithstanding some of the post-event conduct of the accused, including his request to Detective Fretten upon seizure of his mobile phone, to have it back to delete photographs, and the provision of him on two occasions of the incorrect PIN number to allow the police access to the phone’s contents. A further matter of suspicion arose by virtue of the accused telling Ms Michails to tell police that Saadallah had stayed with them for a matter of days, something he himself told the police.
The matters of suspicion raised by Mr Yildiz and Ms Kong do not advance the Crown case. Each was capable of innocent explanation or interpretation. For example, the evidence of Ms Kong concerning the conversation about leaving the poker machines open was explained away by the fact that the new system had been in place for one week, during which the accused had not been working at the hotel. Other matters which fell into the same category was the evidence of Mr Yildiz that the accused told the robber to “Take it easy”, and his evidence that the accused stopped him from leaving the disabled toilet.`
Applying the direction that I have given myself in respect of the various exculpatory statements the accused made to the police, even if I did not accept those statements but think they might be true, then I am required to acquit the accused of the offence charged.
With respect to the lies told by the accused, they went to matters which were not of any great weight in the overall determination of the issues and cannot be used to prove the accused’s guilt.

Thus, on the whole of the evidence, I am satisfied that there is a rational inference to be drawn consistent with the innocence of the accused. I therefore find that the Crown has failed to prove its case against the accused beyond reasonable doubt on each of the above bases.

Order

Having found the Crown has failed to establish its case beyond reasonable doubt, I find the accused Not Guilty of Count 1 on the Indictment, namely that he:

On 2 May 2018, at Belmore in the State of NSW, did whilst armed with a dangerous weapon, namely a black pistol, rob Yilmaz Yildiz of $96,315, the property of Monarch Hotels Pty Limited (trading as Belmore Hotel).

*******

Decision last updated: 19 February 2021

Medium Neutral Citation:	R v Itani [2021] NSWDC 26
Hearing dates:	25 January 2021 – 12 February 2021
Decision date:	18 February 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Verdict of not guilty
Catchwords:	Armed robbery; joint criminal enterprise
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 Ghani v Jones (1977) 1 QB 693 House v The King (1936) 55 CLR 499; [1936] HCA 40 McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Riley [2020] NSWCCA 283 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Khaled Itani (Accused)
Representation:	Counsel: C Dodds (Crown) A Moutasallem (Accused) Solicitors: R Nezval (Crown) D Gaudiello (Accused)
File Number(s):	18/360930
Publication restriction:	Nil