R v Jamal
[2013] NSWDC 20
•08 March 2013
District Court
New South Wales
Medium Neutral Citation: R v Jamal [2013] NSWDC 20 Hearing dates: 21, 22, 25 - 28/02/2013; 1, 4 - 8/03/2013 Decision date: 08 March 2013 Jurisdiction: Criminal Before: Judge Norrish QC Decision: Not guilty
Catchwords: CRIMINAL LAW - judge alone trial, reliability of indemnified witnesses, witnesses criminally concerned, informers. Legislation Cited: Criminal Procedure Act 1986
Evidence Act 1995Cases Cited: Fleming v The Queen (1998) 197 CLR 250 Category: Principal judgment Parties: Director of Public Prosecutions
Saleh Jamal - accusedRepresentation: Ms K Shead - Director of Public Prosecutions
Mr R Driels - accused
Director of Public Prosecutions
Bannisters Lawyers - accused
File Number(s): 2007/14844
Judgment
R v SALEH JAMAL
Introduction
The accused pleaded "not guilty" on 21 February 2013 to a charge preferred on indictment alleging that he: "On the 1st November 1998, at Lakemba in the State of New South Wales did fire a firearm in or near a public place, being Gillies Street, Lakemba."
The trial was one by "Judge alone" pursuant to ss 132-133 Criminal Procedure Act 1986.
The charge is concerned with a shooting at and around the Lakemba Police Station in Gillies Street Lakemba in the early hours of 1 November 1998. It is agreed between the parties that this event involved the participation of a number of people. The crime was a very violent crime that struck at civil order, challenged law enforcement agencies, and potentially put lives at risk. The details of the shooting incident from eye witnesses are in the 'Admitted Facts' tendered by the prosecution set out below.
The Crown case against this accused is that he was not one of those who discharged firearms, but was part of a 'joint criminal enterprise' to commit the crime in that he was involved in preparations for it, he assisted the execution of the crime, perhaps by monitoring a police scanner, waiting nearby to the shooting ready to assist, knowing that the crime had been committed and by assisting the principal "shooters" to escape. The principals were part of a criminal group called "DK's Boys". The Crown produced evidence of two motives, possibly three. The evidence of motive(s) expressed before the shooting suggested anger at treatment of (young) Lebanese people in the Lakemba area by the police and the need to make "a statement" and/or was related to police activities directed at Tony Haddad (involved in car repair and rebirthing), an associate of the alleged gunmen, who lived in Wiley Park. A second (or third) motive arises from an alleged admission by the accused months after the event that he wanted to get the police off "his (or our) back(s)", his smash repair business having been raided on 14 October 1998.
The Crown relies upon oral evidence and photographic evidence, to show that Mr Jamal was an associate of the criminal group at the time of the Lakemba shooting. The photograph(s) do not establish this, as such, as nobody knows precisely when they were taken. But one photo of the accused shows him in company of members or associates of the group. The principal witnesses Alan Rossini, Peter Laycock and Dennis Green were members of the group, although Green played no role in the events of 31 October/November 1998 at Lakemba. The evidence of admission was given by Mr Kennedy (a criminal associate of the accused). All civilian witnesses had pseudonyms when giving evidence.
As to the accused's role in the joint criminal enterprise, stated simply, proof of guilt relied principally upon the accounts of Rossini and Laycock with purported support from Mr Green (of the accused's presence at a relevant planning meeting) and Mr Kennedy (of the admission(s) made by the accused). If one was satisfied of Mr Jamal's presence in the company of the' shooters' before the shooting, as they armed themselves, as they discussed their plans to shoot the police station, driving them nearby to the scene to pick up a stolen car and waiting for them to drive them away after the shooting, the relevant knowledge and relevant intention to participate in the joint criminal enterprise would follow as a matter of common sense. Of that there was no dispute at trial.
The prosecution case had no evidence independent of the civilian witnesses to place the accused in the company of the shooters in circumstances which would establish relevant knowledge, intention and participation. It produced independent evidence to establish Laycock's, and thus Rossini's, involvement from the CCTV photos taken of Laycock buying a petrol can at a service station on Canterbury Road before the shooting. A stolen car used by the shooters was burnt afterwards by use of petrol, the can used was found at the scene.
The Crown case relies upon accepting the truthfulness of Mr Rossini, and in so doing relying upon the truthfulness of the evidence of Laycock and Green to support him materially, although their evidence in different ways is relied upon as direct evidence of participation by the accused in the criminal enterprise.
The evidence of the ex post facto statement made to Kennedy, if accepted, is capable of supporting the essence of Rossini's account in a general sense. On the other hand, even accepting that the words were said, one would have to accept that the admission was true and not boasting or "grandstanding" on the part of the accused.
The context or background to the charge brought against the accused is the activities of a criminal gang or group that was controlled by a man called Danny Karam until he was murdered by members of the group in December 1998 at Surry Hills. This criminal group existed at least during 1998 through to June 1999. On the basis of the evidence of Alan Rossini and his connection with it, it existed also in 1997. It was involved in a number of criminal activities in the period 1998 to 1999, but a central criminal activity was the supply of cocaine in the Kings Cross area. The evidence shows that members of the group and their associates were involved in murders, woundings of individuals by firearms, discharging of firearms in public places to intimidate others (or as revenge), dealing in stolen motor vehicles, supply of marijuana, physical assaults upon drug supply rivals and others, extortion, 'protection', significant firearms possession and the use, driving and destruction of stolen cars, amongst other criminal activities. The group had "safe houses", or establishments that they controlled, or occupied in the inner city and elsewhere. These places were, at various times, at Paddington, Surry Hills, Mays Hill, Haymarket, Campsie and elsewhere. At these places from time to time were kept prohibited drugs and firearms. The principal 'safe house' in this matter was 343-349 Riley Street, Surry Hills (the Surry Hills apartment). In October/November 1998 that apartment (in the Mayfair/Addison Apartments) was where cocaine was packaged and where a number of firearms were kept. These included handguns, an 'AK47' and shotguns.
Danny Karam, was the head of the organisation until his death in mid December 1998. His main lieutenants were Michael Kanaan, Alan Rossini, Wassim El-Assad and Rabeeh Mawas. Other people with prominent roles in the group were Charlie Gea Gea and Ghassan Said, generally referred to as 'Easy'. Shardi Derbas, 'Hass' or 'Has' and Tony Haddad (who lived in Wiley Park) were nominated as associates by Rossini or Laycock, amongst others. Saleh Jamal was clearly an associate, but his role within the group was a matter of some dispute. There was some conflict in the evidence about the roles of people other than Kanaan, El-Assad, Mawas and Rossini. Rossini described himself and others as 'lieutenants' to Danny Karam, including the accused, Gea Gea and Easy as lieutenants as well. Other assessments placed Kanaan above Rossini who was above El-Assad and Mawas. There was no formal 'organisation chart', but of the leading roles of Rossini and Kanaan I have no doubt. Although Mr Rossini could be said to have made many frank admissions about his role within the group, there was a strong impression that whilst he was willing to take general responsibility, in specific instances he attributed blame or responsibility to others in circumstances at odds with his capabilities and interests in the group's activities. The critical matter, however, was understanding the relationship of the accused with the group at what could be called the relevant time, late October, early November 1998.
Mr Rossini placed the accused as an active participant in the central criminal activity of the gang, supplying cocaine, making him out to be one of the 'Boys'. Apart from some suggestion in the evidence of a minor role in that regard by him, in that he sourced cocaine on one occasion, there was no support in the evidence of Mr Laycock or Mr Green that the accused was substantially involved in this core activity. Special rings were made with an inscription 'DK' and other writing, to signify membership of the group. Mr Jamal was not the recipient of such a ring from Danny Karam .Special tattoos were acquired by at least some of the 'Boys'. Not Jamal apparently. In fact, up until Karam's murder in December 1998, no witness refers to Jamal being in Karam's company. The accused was know as "Ray" or "Saleh" or "Sully" by members of the group. I am prepared to accept that Mr Jamal was an associate of the group and given his contact with it, would have been aware of some of its criminal activities. There was evidence that he was directly involved in dealing with stolen cars, "rebirthing" as it was referred to, and at least from January 1999 was involved in the supply of marijuana. He was involved in the shooting of Elias Elias in 1998. Many of these activities, however, were not integral to the criminal activities of DK's Boys. Involvement in car rebirthing could assist the criminal group in its various activities, particularly given its need from time to time for stolen cars to commit to various crimes. Rossini did not give a specific instance of this activity by the accused. In fact, he said that Tony Haddad, who was involved in car theft and rebirthing, was the source of the stolen car used in the crime with which this trial is concerned, as he had been on other occasions.
Around the events giving rise to the count in the indictment, the group was involved in particular criminal enterprises, many of which I note in passing did not allegedly involve the accused, but which were are relevant in assessing the truthfulness, reliability, accuracy and general credibility of the witnesses Rossini, Laycock and Green. Both Laycock and Green were acolytes of the group who were connected from different perspectives. Laycock was Rossini's cousin and was employed by him no later than August 1998 as a driver and messenger. His role in the group increased after Karam died, to the point where he played an active role as an enforcer, particularly in the discipline of runners. He sought to portray himself as feckless, disinterested and merely a 'catch and fetch dogsbody'. Whilst he may have been that in 1998, in 1999 he was more important and had more independence, although he was still at the direction principally of Rossini and Kanaan. Mr Green in 1998 was a runner distributing cocaine at street level. When he became a manager for the group after Karam died he had more authority and over a six-month period, at least, regularly carried a firearm to enforce that authority.
Amongst the principal criminal offences that were referred to in the evidence as committed or by involving this criminal group (or Rossini particularly) were:
- the murder of Adam Wright and Michael Hurl and the attempted murder of another man outside a hotel in Five Dock (the Five Dock matter) in July 1998
- the shooting at and around the EP1 nightclub in King's Cross in September 1998
- the shooting of Elias Elias at Greenacre on 13 October 1998
- false alibi for the person responsible for the murder of Edward Lee (a schoolboy) on 17 October 1998,
- the shooting at Lakemba police station on one November 1998,
- the discharge of firearms in Everleigh Street Redfern on 11 November 1998
- the murder of Danny Karam on 13 December 1998
- the attempted murder of two police officers in a Rushcutters Bay (the White City matter) on 23 December 1998.
There were other crimes are admitted by Rossini and Laycock around this period, but many of the above mentioned crimes were matters about which they gave induced statements and are protected from prosecution.
In addition to the activities of the group, or of individuals identified in the trial, with varying degrees of detail, there were some other relevant events. These included, the arrest of Michael Kanaan on 23 December 1998 (over the White City shooting, he being severely wounded) and his release to bail on 5 March 1999, the arrest of Rossini, Laycock and Green on a charge of conspiracy to supply a commercial quantity of cocaine on 1 June 1999, the 'rollover' of Laycock in early June 1999 followed by the 'rollover' of Rossini, Rossini giving evidence at the New South Wales Crime Commission in early July 1999, the arrest of the accused on 16 July 1999 in relation to other offences and his arrest in relation to the current matter on 17 September 1999.
Mr Rossini gave evidence at committal proceedings regarding the Lakemba matter on 13 November 2000, Laycock on 14 November 2000. Alan Rossini gave evidence at the Karam's murder trial, involving Kanaan, El-Assad and Mawas in late April 2002, Laycock gave evidence at the same trial in May 2002. Then there was a 2004 trial in relation to the Lakemba shooting involving Kanaan, El-Assad and the accused. Only Rossini gave evidence before the jury was discharged. Then there was a trial in May 2005 of Kanaan and El-Assad of this matter at which Rossini and Laycock gave evidence, as did Dennis Green. There finally was a trial of the accused in November 2009 in relation to the Lakemba matter, at which Rossini gave evidence on 9 November 2009 and Laycock gave evidence on 10 November 2009. The accused was convicted. The specific charges brought against particular people for the 'Lakemba matter' have apparently varied, but are not important at this point. I had not read the judgement of the decision of the Court of Criminal Appeal in respect of Mr Jamal's successful appeal against his conviction before this trial commenced and have not read it subsequently. I had tried Mr Kanaan and the accused for the shooting of Elias Elias. Both men were found guilty by a jury and I sentenced them both. Naturally, I have a general recollection of that trial, and some recollection of the detail of the trial, but I have not refreshed my memory from my sentencing remarks, or the summing up. No application was made by either party for me to disqualify myself because I had presided over that trial. The detail of that event has only been a peripheral to the issues in this trial, primarily in relation to the credibility of Mr Rossini. But as no evidence from that trial was the subject of significant cross-examination of Mr Rossini or Mr Laycock, those proceedings ultimately were of no significance whatsoever in this trial.
Apart from the civilian witnesses to give evidence, the current officer in charge, Detective Senior Sergeant Mackenzie, gave evidence of matters that emerged from the police investigation in 1998/1999, as well as some additional evidence such as a motor vehicles registered in the name of the accused in 1998. The motor vehicles that the accused acquired, from 1996 up until his arrest in July 1999, were, a Mitsubishi Lancer sedan, a Holden Barina sedan and a Mitsubishi Magna sedan. No four-wheel-drive vehicles of the types described by Mr Rossini and Mr Laycock were registered to the accused. However, although it was not the subject of particular address, I understand that the evidence suggested, even established, that the accused had access to other motor vehicles, including stolen and rebirthed motor vehicles. He also was connected to, or had an "interest" in, President Smash Repairs, a business at 69 Rosedale Avenue Greenacre which was searched by police on 14 October 1998 in relation to an operation relating to stolen cars, from which two motor vehicles were seized. No person was arrested or charged in relation to this action. Although the relationship of the prisoner with the business is not precisely defined, even in Mr Kennedy's evidence which is concerned with late January 1999 onwards, the accused had a connection with that business at that time and was observed coming and going from the business in mid July 1999, the day before his arrest.
The evidence of "bad character" of the accused led by the Crown was relevant to establishing a connection with DK's Boys at the relevant period of late October or early November 1998, to establish a motive on the part of the accused to be part of a criminal enterprise to shoot at the Lakemba Police Station and to show the capacity of the prisoner to have access to motor vehicles that may be used in the criminal enterprise and items such as a police scanner, as alleged by Mr Rossini. Certainly, it was not the Crown's contention that "tendency" or "coincidence "evidence was relevant or admissible in relation to these matters.
LEGAL PRINCIPLES TO BE APPLIED
The matters outlined below are primarily related to matters addressed upon. Not a great deal of attention was taken by the parties to legal issues as most legal issues appeared to be agreed amongst the parties at the end of the evidence, particularly on fundamental issues, although, of course, a number of legal issues arose during the trial. There was no issue as to the elements of the offence charged. Their meaning was self evidently reflected in the events set out in the agreed facts.
Onus and standard of proof of guilt
The prosecution bears the burden of proving the guilt of the accused. That burden or onus rests with the prosecution throughout the trial in respect of matters regarding proof by the prosecution. The accused bears no onus of proof. The accused is presumed to be innocent until such time as the prosecution can prove his guilt.
The prosecution must prove each and all essential ingredients of a relevant charge for consideration 'beyond reasonable doubt'. Those words are to be given their ordinary, everyday meaning. The accused bears no onus in relation to any matters requiring proof by the prosecution. If any reasonable doubt exists in relation to matters which the prosecution must prove to establish guilt, then I must acquit the accused. Here there was not doubt that 'a firearm' was 'fired' in or near 'a public place' in Gillies Street Lakemba, and that was unlawful. The issue for determination was whether the prosecution had proven that the accused was part of a joint criminal enterprise for this crime to be committed.
Trial by judge alone
The trial is a trial by judge alone in accordance with the provisions of the Criminal Procedure Act (see s 132, 133 Criminal Procedure Act 1986). A trial by judge alone requires the trial judge not just to state bare principles of law that are applied and findings of fact that are made, but also to expose the "reasoning process" justifying the findings of fact and ultimately the verdict.
All principles of law which are relevant and required to be applied and considered should be identified in the judgment, including any necessary warnings that the trial judge is required to apply in the assessment of the evidence. Where particular warnings are applied a judge must state why, if appropriate and applicable, and notwithstanding the appropriate warnings or the consequences of it, a particular verdict has been reached (Fleming v The Queen (1998) 197 CLR 250 (at 261-264)).
Prior inconsistent statements
Prior inconsistent statements or statements made on previous occasions may be referred to to establish inconsistencies between those accounts and the evidence of a witness in this Court. What is said by a witness on a previous occasion is not itself evidence of the fact unless, of course, the previous statement is adopted in this Court. If there is an inconsistency between a previous statement or evidence and evidence in this Court it may be taken into account in either assessing the credibility of the particular witness in relation to that particular matter or in assessing the credibility of the witness generally. In considering such inconsistencies one may, if satisfied that there are inconsistencies, regard those matters as reflecting adversely upon the truthfulness of the witness. The significance of these matters in relation to a particular witness will depend upon the significance of the inconsistency, the number of inconsistencies and of course the significance of the witness in the case.
The silent accused
The accused did not give evidence. The accused bears no onus of proof. The accused is presumed to be innocent until satisfied by the Crown that he is guilty. Consistent with this, the accused is entitled to elect to say nothing and to make the Crown prove his guilt. The accused in this trial has chosen, as is his right to do so, not to say anything in Court. An accused person cannot be compelled in Court to say anything. Neither can the accused be compelled out of Court to say anything.
I cannot draw any adverse inference against the accused because he has exercised his right to silence in Court. I must not speculate as to why the accused has not given evidence. Furthermore, I must not treat the accused's election not to give evidence as being capable of filling any gaps in the Crown case that you may perceive to exist.
Joint criminal enterprise
Where two or more persons carry out a joint criminal enterprise, that is an agreement to carry out a particular criminal activity, each is held to be criminally responsible for the acts of another participant in carrying out that enterprise or activity. This is so regardless of the particular role played in that enterprise by any particular participant. The Crown must establish both the existence of a joint criminal enterprise and the participation in it by the accused.
A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.
The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by any one or all of them.
The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish that at some point in time an agreement has been reached between them that the crime should be committed.
It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime. All of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each in its commission.
The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential facts or ingredients, which make up that crime, was committed, regardless of who actually committed them. Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that he, or she, was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.
Warning re: reliability of the civilian witnesses
In respect of the evidence of Peter Laycock and Alan Rossini they are both witnesses are witnesses who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding. They are also informers, in a general sense, as are Mr Green and Mr Kennedy. The four main witnesses in the prosecution case have each been the beneficiary of various advantages and benefits as a result of their willingness to give evidence in this and other matters.
In summary, Mr Rossini was given an indemnity under the relevant provisions of the Criminal Procedure Act applicable in October 1999, in respect of the offence of conspiracy to supply not less than the commercial quantity of cocaine and "any associated offences in respect of matters relevant to the said proceedings and covered by your evidence in the said proceedings", on the condition that until the conclusion of all criminal proceedings against various people, he participated in interviews and submit to relevant surveillance and direction. He was also given undertakings by the then Attorney General, pursuant to the then relevant provision in the Criminal Procedure Act, that his evidence and other matters would not be used in proceedings against him, except in respect of the falsity of his evidence, if he gave evidence in criminal proceedings brought against this accused, Michael Kanaan (and others) for various offences arising from the "drive-by shooting of the Lakemba police station on one November 1998" and that he actively cooperate, provided, of course, that his evidence was "the truth, the whole truth and nothing but the truth".
He was given undertakings similarly in relation to a number of other offences including charges of attempted murder of police officers on 23 December 1998 (the White City matter) the drive-by shooting in Everleigh Street on 11 November 1998, the murder of Danny Karam on 13 December 1998, the shooting of the EP1 Nightclub in Kings Cross and 11 September 1998, the murders of Adam Wright and Michael Poole and the attempted murder of Ronald Singleton (the 'Five Dock' matters), amongst other matters. He signed an undertaking on 25 November 1999 to give evidence in any proceedings against the accused and others for offences arising out of the drive-by shooting of the Lakemba police station, in accordance with the statement given by him on a July 1999. He was also given the benefit in this trial of a s 128 certificate (Evidence Act 1995), because it was felt that evidence he was giving in respect of his various criminal activities might fall outside the protection of relevant indemnities and undertakings. The certificate is of little or no significance in these proceedings.
Mr Laycock received an indemnity against prosecution in identical terms, to all intents and purposes, with that received by Mr Rossini in 1999. An identical undertaking was given in relation to the "Lakemba Police Station" matter as was given to Mr Rossini. Other undertakings not to prosecute him were given in relation to the EP1 nightclub matter, the Everleigh Street Redfern matter, the murder of Danny Karam, and the various offences related to conspiracy to supply not less than the commercial quantity of cocaine between 1 January 1999 and 30 June 1999, amongst other matters. He received a s 128 certificate in this trial which is ultimately of no moment. Rossini and Laycock were not charged with any other offences other than those concerned with the supply of cocaine. Although they were charged in relation to offences relating to a "commercial quantity" of cocaine, there was evidence available of their involvement in the supply of a "large commercial quantity" of cocaine at the time they were given the indemnity against prosecution. Their evidence and that of Mr Green shows that they were concerned with significant cocaine supply in differing ways, for many months beyond the first five months of 1999. Any charges laid against Mr Rossini and Mr Laycock were withdrawn. They gave induced statements in relation to the various matters with which they were charged or given undertakings. They did spend several months in custody during which their protections from prosecution and relevant undertakings were sorted out.
Mr Green received a discount for his cooperation and undertakings to give evidence having pleaded guilty to an offence of conspiracy to supply not less than the commercial quantity of cocaine. That discount was 50% in total, for his cooperation and the utilitarian benefit of the plea of guilty. Whilst the charge against him was conspiracy to supply not less than the commercial quantity of cocaine, the facts concerned events between mid April 1999 and the date of his arrest on 1 June 1999. He had been involved in this activity in 1998. The charge to which he pleaded guilty 'pleaded' a conspiracy between 1 January and 1 June 1999. He was not charged with other criminal offences. He likewise received the benefit of a s 128 certificate.
Mr Kennedy was not charged with any offence in relation to the circumstances of his connection with Mr Jamal. He was approached by police and ultimately gave an induced statement in relation to his involvement in cannabis supply with the accused, his knowledge of the accused's connection with President Smash Repairs and the Lakemba Police Station shooting and, perhaps, other matters. He was under police surveillance, prior to early June 1999. He knew he was at risk of arrest in relation to his marijuana supply activities. It was indicated to him, "in not so many words", that if he assisted the police, the police could assist him. This they did. He has never been charged with any crime in relation to his activities in 1999.
The degree and character of benefit obviously varied from witness the witness. The greatest benefit was provided to Mr Rossini who was more criminally concerned in more crimes then the other three. Mr Laycock, although less criminally concerned, and involved in less crimes, on any measure received a very considerable benefit. The benefit to Mr Green was very significant, with a discount at the upper level of discounts available at that time he was sentenced in 2000 and was prosecuted on a limited basis. He obviously committed other crimes, but whether there was admissible evidence for them I do not know. Mr Kennedy also received a substantial benefit. He was not charged with any offence, and importantly, like the other witnesses, he received the benefit of an inducement that anything he said in his statement(s) could not be used in proceedings against him. Ultimately, he had the benefit of a section 128 certificate, like other witnesses, although I accept that he was willing to give evidence, whether he received a certificate or not.
Their evidence for various reasons must be scrutinised with great care. Because of the circumstances in which these witnesses come forward their evidence may be unreliable. The witnesses in different ways and for different purposes may well be trying to exculpate themselves from the relevant events, or minimise their part, by fabricating the role or exaggerating the role of others. It is to be borne in mind, of course, that if they were in fact where as they claim they were they are in a position to relate details about what happened from their direct knowledge to give their version some credibility. Further, they may fabricate or exaggerate allegations out of spite, revenge or antipathy towards the accused, for reasons which are not known. There may be other reasons for them to falsely implicate the accused that are not readily apparent or, more importantly, incapable of exposure. The person who wishes to shift blame or falsely implicate another for his own benefit may be persuasive and be capable of pretending that they are truthful in their recounting of events. I need to scrutinise with great care to see if there is any evidence independent of both men that supports their version of events. They all have good reason to live up to the respective bargains they struck in 1999 and since.
In relation to the respective accounts of Mr Rossini, Mr Laycock and Mr Green, although there is no rule of law that a witness involved in criminality cannot support the evidence of another involved in the same criminality, one must be very careful before relying upon one such witness to support the others account and vice versa. The reason one must be careful before one can use the evidence of one to cross support the evidence of another includes:
i) they have contradicted one another as to some of the events occurring at the time of the shooting and afterwards,
ii) Rossini and Laycock are related to one another and know one another well.
One should bear in mind that they have not only an interest in minimising their own roles but also in protecting each other from prosecution and imprisonment.
I appreciate there is no direct evidence of collusion. They deny it where it has been raised, or an awareness of what the other has said on a number of prior occasions. However, they were arrested around the same time, Rossini became aware that his cousin had rolled over before he offered assistance having learnt this from mutual family member(s), they have been in contact with one another since that time (on the account of Mr Laycock the last time approximately a month ago). Ultimately I am reliant upon their truthfulness as to whether, in fact, there has been collusion or contamination that has infected or affected their accounts. There is no evidence that collusion at particular times was impossible. Their truthfulness is very much an issue in the trial.
The warning that is given in relation to such witnesses is born out of experiences of courts over many years in relation to the potential unreliability of those who wish to give evidence to fulfil some purpose or self benefit, rather than giving evidence for altruistic purposes. One must bear in mind that the evidence of Laycock and Rossini is not "independent" one to the other. The reasons which might exist to concoct evidence are much the same for both men.
Forensic disadvantage
Elsewhere in the judgement I deal with the effect of the effluxion of time upon memory and the effect of giving evidence on a number of occasions, in respect of this matter and on other topics. Of course, the effluxion of time has also meant that other evidence cannot be produced from investigating police and the like, who are no longer available. This may be a detriment to the accused in the conduct of his defence and in relation to appropriate and effective challenge of witnesses. However, it should be fairly observed, that the accused has had material upon which the evidence of the civilian witnesses could be challenged, contradicted or otherwise assessed. In fact the multitude of proceedings in relation to the Lakemba Police Station affair has provided material upon which the witnesses can be cross-examined about prior inconsistent statements, or reminded of evidence previously given which assisted the conduct of the defence case.
Admitted facts
"Pursuant to section 184 of the Evidence Act 1995, and following advice from counsel, the accused admitted the following matters of fact:
(1) Mr Jamal was also known to friends and associates by the name of Ray.
(2) At approximately 1:15am on Sunday, 1 November 1998, shots were fired at the Lakemba Police Station ("the station"), located on the corner of Gillies and Quigg Streets in Lakemba.
Observations of Police
(3) Upon hearing gun shots, Officer Rivers looked out the left hand window of the station front and saw red flames coming from a car as it was driving west on Gillies Street. He believed the car to be a sedan and observed it to be about seven metres away from the entrance of the station. The shots started coming rapidly.
(4) Officer Blakely yelled "Hit the deck" and the five officers lay down on the floor of the station.
(5) The shots were fired over a period of about 10 seconds.
Photographs and Maps of Area
(6) (Tendered)
Eye Witness Evidence of the car leaving the scene
(7) Immediately after the shooting, a number of witnesses in Haldon Street observed a black sedan travelling at speed down Gillies Street, turn right into Haldon Street and then turn left into Oneata Street. This was followed shortly after by a maroon late-model Holden sedan which travelled the same route at speed. No witness saw a white or black 4WD.
(8) Mr Mika Pritchard was working as a bouncer at the Lakemba Hotel on Haldon Street on the night of the shooting. From the front door of the Hotel, which faced straight down Gillies Street, he observed the maroon Holden sedan to have registration similar to "PPJ". He made a police statement to this effect on 3 November 1998.
(9) Mr Rimo Moeroa, from a position on the western kerb of Haldon Street, saw a black Commodore sedan screeching sideways around the corner, turning left from Haldon into a little side street, it looked out of control, as thought it were going to crash. The noise from the screeching wheels was very loud. The car had bad dents of the passenger side doors and dark tinted windows that he could see through. He saw the maroon sedan and saw a person in the front passenger seat of the maroon Holden sedan as it turned from Gillies Street into Haldon Street. On that day, he made a police statement and gave police the following description of the person in the front passenger seat of the maroon car: a man who looked in his early twenties, Lebanese, with black hair which was short on the sides and longer on the top, which was worn slicked back with gel. He was clean shaven and looked skinny. He was wearing a white collared shirt, and sunglasses. He couldn't see the person in the driver's seat or anyone else in the car.
(10) Mr Memory Pedro Junior, spoke to police on 4 November 1998 and made a statement. From a position on the western kerb of Haldon Street, he saw a black small car turning left into Oneata Street. As it turned it screeched. This was 30 seconds after bangs he heard. Aftet another 30 seconds he saw the maroon car trun right from Gillies Street into Haldon Street. He saw person in the back left seat of the maroon Holden sedan as the car turned into Haldon Street. He could see the person's arms and saw white skin. He thinks the person was wearing a white t-shirt. He also saw a man in the front passenger seat who was holding on to the glove box. He could see that man's arms and he had white skin also.
(11) Ms Lucy Teariki, from a position on the western kerb of Haldon Street, saw three male persons in the rear of the maroon Holden sedan, and two male persons in the front. The person sitting in the front passenger seat she described as male, of Australian appearance, about 17 to 18 years old, slim to medium build, clean shaven, and waring a Nike brand woollen beanie with a white tick on the front. She can't describe anyone else in the car other than that they were male. Ms Teariki made a police statement on 4 November 1998.
(12) Ms Zara John, from a position on the western kerb of Haldon Street, noticed a man sitting in the back behind the front passenger seat of the maroon Holden sedan. He was male, about 19 years old, didn't have dark skin, and was wearing puffy white jacket similar to a bomber jacket. He also had a light coloured cap on which he was wearing back to front. She says she didn't really pay attention to the other people in the car, but can remember that there were four males in the car. She spoke to police on 1 November 1998 and made a statement on that day.
(13) Ms Heather Te Rangi was at a party at 60 Gillies Street. She heard a noise like firecrackers and about 20 seconds later she looked across a worksite next door. About 20 to 25 metres away from her she saw a man pointing something across the road and it looked like a rifle. He was pointing it towards the back of the shops towards the station. He ran towards Haldon Street and continued to point the gun across the road. She described the man as about 6 feet in height, well built, no hat and hair not worn long. She spoke to police and made a statement on 1 November 1998.
Ballistics Evidence
(14) Expert ballistic examination of the scene established that a minimum of sixteen shots were fired at the station.
(15) The weapons used were firearms.
(16) There were thirteen bullet holes in the doors of the station.
(17) Parked on the northern kerb at the front of the police station at the time of the shooting was a fully marked police vehicle, a Holden Commodore station wagon bearing NSW registration UUX-989. Bullet holes were located in the front driver's side door and off-side front bumper bar of the car.
(18) A bullet hole was also located in the New South Wales Police Force plaque on the front brick wall of the station next to the front entrance doors.
(19) Forensic examination of the projectiles seized by police from the scene of the shooting established that the shots were discharged from at least four, but possibly five, different weapons. Three of those weapons were 9mm handguns. One of those weapons was a 45mm handgun.
(20) At least two projectiles were fired from one of the 9mm handguns, and at least four projectiles were fired from the two other 9mm handguns. At least two projectiles were fired from the 45mm handgun.
(21) The 45mm handgun used in the shooting was seized by police at Weigall Sports Ground on 23 December 1998 in relation to another shooting incident at which Michael Kanaan and Wassim El-Assad were arrested at the scene. Alan Rossini was also present, had the handgun, threw it away and fled the scene.
(22) There is heat involved in the firing of a firearm due to the explosion and ignition of the gunpowder in the cartridge. The temperature of the fired cartridge reached is in the order of 500-800 degrees celcius.
Dog Tracking
(23) At 1:50am on 1 November 1998, Senior Constable Phillip Maria attended Samuels Street, Wiley Park. He removed police dog Axle from his car and walked to a pedestrian walkway located at the western end of Samuel Street.
(24) The police dog was then placed into a tracking harness but was unable to locate any human scent in this area.
(25) They moved forwards on to King Georges Road. Again, the police dog was unable to locate human scent in this area.
(26) They moved in a straight line into the Wiley Park Public School. The police dog located human scent on the bitumen on the southern side of the public school. The dog followed this scent in a westerly direction, continuing along the bitumen and then on to a grassed area. The scent was followed over a small fence and into Denman Avenue, Wiley Park. At this stage the track was lost.
Burnt out Cars in Samuel Street
(27) Mr William Sikahele was the owner of the maroon Holden Commodore bearing NSW registration PPY-099. At about 7pm on Saturday, 31 October 1998, Mr Sikahele parked his car in a garage situated in his unit complex at 10 Renown Avenue, Wiley Park. The car was locked and a club lock was placed on the car's steering wheel. Mr Sikahele did not return to the garage until after 8pm on 1 November 1998, when he noticed the car was missing and there was broken glass on the floor of the garage.
(28) At 1:25am on Sunday, 1 November 1998 a call was made to triple 0, alerting them to a car on fire in Samuel Street, Wiley Park.
(29) Members of the NSW Fire Brigade arrived in Samuel Street at 1:34am and saw two cars parked alongside each other alight: a 1982 white Ford Falcon, bearing NSW registration number MXE-486, and a maroon V6 1989 model Holden Commodore sedan, with no registration plates. The fire was extinguished.
(30) Located a short distance from the Holden Commodore was a NSW registration plate number PPY-099 which had been scorched by fire.
(31) The white Ford Falcon was owned by Nick Xenos. He had parked his car at the end of Samuel Street at 8:45pm on 31 October 1998. There was severe fire damage to the offside of that car and the interior was completely gutted by fire. The fire damage occasioned to the offside of the car was as a result of radiant heat from the Holden Commodore.
(32) The maroon Holden Commodore was completely destroyed by fire. Forensic experts were unable to establish the fire points of origin in the car due to the complete destruction of the interior. However, an empty 5-litre petrol can was located on the driver's seat of the car.
(33) The ash and debris, metal and glass fragments from the floor and seat areas within the car was sifted and no evidence was located which would assist the investigation.
(34) A photograph of Mr Sikahele's car is attached.
7-Eleven Purchases
(35) Shortly after midnight on Saturday 31 October 1998, a dark skinned male entered the 7-Eleven convenience store and petrol station located at the intersection of Canterbury Road and Chapel Street in Lakemba.
(36) The male asked the cashier whether he sold empty petrol cans. The cashier informed him that he did and pointed to the first aisle in the store. The male picked up a 5-litre silver petrol can and returned to the counter where he purchased the can for $6.95 and another item for $2.50 with a $20 note. This purchase was made at 12:17am.
(37) The male left the store and walked over to a petrol bowser where he proceeded to fill up the can with petrol.
(38) The male returned to the store and paid $3.27 for 4.89 litres of petrol. This purchase was also made with cash and was made at 12:20am.
(39) There were no other purchases of petrol cans from the store on this night.
(40) CCTV stills from the 7-Eleven store depicting these two transactions are attached.
(41) The cans sold at the 7-Eleven store are of the same colour and manufacture as the petrol can located on the driver's seat of the Holden Commodore which was destroyed by fire in Samuel Street.
Croydon Park Ex-Servicemen's Club
(42) On 31 October 1998, there was an engagement party for relatives of the witnesses known as ROSSINI and LAYCOCK held at the Croydon Park Ex-Servicemen's Club.
(43) The function started at 6:00pm.
Adeel's Palace Photo
(44) In the evening of 28 November 1998, a photograph was taken of a group of men seated at a table at the Adeel's Palace restaurant, located at the corner of Highclere Avenue and Breust Place in Punchbowl.
(45) The persons depicted in that photo, from left to right, are: Rabeeh MAWAS, Danny KARAM, Charlie GEAGEA, Michael KANAAN, Alan ROSSINI, Alex TAOUIL, and Wassim EL-ASSAD. The people depicted in this photo were members of "DKs Boys".
President Smash Repairs
(46) On 14 and 15 October 1998, a police operation named "Mao" was conducted. During that operation a large number of panel beating businesses within the Bankstown Local Area Command were visited and inspected by police and authorised inspectors from the Motor Vehicle Repair Industry Council.
(47) On 14 October 1998, police inspected President Smash Repairs at 69 Rosedale Avenue, Greenacre and seized two cars. No person was charged as a result of this action.
(48) On 14 July 1999, police observed the accused driving a 1977 Subaru Impreza, NSW registration VSD-577, to President Smash Repairs.
(49) On 15 July 1999, police observed the accused driving the same car from Rosedale Avenue, Greenacre to 21 Boronia Street, Belfield.
Arrest of Accused
(50) Early in the afternoon of 15 July 1999, the accused was stopped in the city, arrested and conveyed to the Sydney Police Centre. In his possession was a set of house keys which police later used to gain entry to premises situated at 21 Boronia Street, Belfield.
Search of 21 Boronia Street, Belfield
(51) At about 5:00pm on 15 July 1999, police conducted a search, pursuant to a search warrant, of the house at 21 Boronia Street, Belfield.
(52) The house had four bedrooms but only one bed.
(53) During the course of the search, the following items were located:
(a) one RC brand computer hard-drive - in the fourth bedroom
(b) two Mitsui brand floppy disks - in the fourth bedroom
(c) Birth Certificate of Saleh Jamal No.44647 - in the lounge room
(d) two photographs captioned Adeel's Palace - in the lounge room*
(e) Delta car rental receipt in the name of Roy Kennedy - in the second bedroom, on which was found the fingerprint of Danny Massey.
(54) Photo #1: From left to right - Ahmad AWAD, Shadi DERBAS, Rabeeh MAWAS, Ghassan SAID, Saleh JAMAL, and Wassim EL-ASSAAD. Rabeeh Mawas was overseas at the time of the shooting. (Exhibit B11)
(55) Photo #2: From left to right - David EID, Ahmed DIB, Meled FADLALLAH, Robert NASSER, a member of the FAHDA family (first name unknown), and Nasean EL-ZAYET.
(56) An analysis of the floppy disks recovered documents bearing the letterhead for "President Smash Repairs".
(57) The accused stayed at the premises at 21 Boronia Street, Belfield and the above seized items were in his possession."
A summary of the accounts given by civilian witnesses
I do not propose to summarize all the evidence of the witnesses. Many of the matters raised in the evidence are picked up in the later consideration of it, or in summarizing the submissions or encapsulated in the earlier part of the judgment. But to understand some of the key aspects of the matter the evidence from the civilian witnesses implicating the accused needs to be set out in summary.
Rossini
Mr Rossini's version of events is that a week or to before the shooting there was a discussion at the apartment at Surry Hills to discuss shooting the Lakemba Police Station. People present were Michael Kanaan, Wassim El-Assad, Charlie Mawas, Easy, himself and the accused. The plan to shoot at the police station was Michael Kanaan's idea, but the accused was present and enthusiastic. Kanaan was offended that young Lebanese males were being targeted by the police and 'nobody' was doing anything about it. Charlie Derbas (the boss of the 'Telopea Street Boys'), an associate of DK's Boys, did not have the "balls" to do anything about it according to Kanaan and he wanted to make a 'statement' about the matter by an attack upon the local police station.
On 31 October 1998 Rossini was at a family wedding reception or engagement party with Mr Laycock when he received a phone call from Kanaan asking him to meet at Croydon Park at a 7-Eleven store. He said that he was rung about 10 or 11pm. He went with Laycock to Croydon Park and met up with Kanaan, the accused and others. When he arrived there he saw that the accused was at the driver's wheel of a white four-wheel-drive vehicle.
Rossini and Laycock parked beside Jamal's car and Rossini got out to speak to Kanaan and others through the driver's side window. There was a discussion in which the accused was present and Kanaan said that they needed to get some "artillery" for a drive-by shooting and had to go back to Surry Hills to get it. He said the accused and Kanaan were in the front seat, 'Easy', GeaGea and El-Assad in the back seat.
Mr Rossini said that he had had a bit to drink and was slightly tipsy. At the committal in 2000 he said he had been heavily intoxicated having had '5-6 jugs of beer' at the family function. As this was to be a shooting it would be 'normal' to get stockings and gloves. This was the usual procedure. They discussed that they may have had gloves so all they had to do was get stockings. Laycock bought the stockings at the 7-Eleven store at Croydon Park on Rossini's instructions.
He and Laycock drove back to Surry Hills. When he got back to Surry Hills all the 'boys' were there. At the Surry Hill apartment there was a stockpile of approximately 5 to 10 weapons, including an assault rifle, shot gun and handguns. At the flat he saw Charlie GeaGea, Kanaan and 'Easy' with weapons. GeaGea already had a .45 pistol, that had been given to Rossini by Danny Karam and was Rossini's weapon of choice. Kanaan and Easy already had 9 mm pistols. He saw the accused sitting next to Easy. He drew a plan of the apartment and marked with people were sitting (Exhibit C). He arrived at the apartment late at night before midnight. The accused had a police scanner with an earpiece. He thought some plans had been made before Rossini arrived.
Michael Kanaan made arrangements to get a stolen car with Tony Haddad. Rossini had been involved in many shootings before and a new the" drill" as to what he was to do which was effectively to run interference for any police intervention, to be a "bumper" as he described it. Rossini left first with Laycock. Laycock picked up petrol from a petrol station on Canterbury Road. They went to a street near Tony Haddad's place at Wiley Park and there he saw "Johnny", Haddad's car thief, with a red stolen car. He said there was no discussion about what was to be done at that point as "we" had fulfilled our role to provide petrol and stockings. Rossini however wanted to help. He and Laycock went to behind the Wiley Park Public School in Denman Avenue, near the school gate. Ultimately he saw Michael, Wassim, Easy and Charlie GeaGea in the stolen car and the accused behind the driver's seat of the white four-wheel drive.
The accused told the others to drive the stolen car to behind the 'Buddhist Temple' (on King Georges Road, near Wiley Park Station) after the shooting and burn it there and then run to where his car was parked.
Rossini and Laycock drove to near Haldon Street and parked in Oneata Street, Lakemba. He said their car could be used as a 'bumper' vehicle to put off pursuing police. There he waited. He heard gunshots and then with Laycock drove back to Denman Street, Wiley Park, by driving along Croydon Street, left at The Boulevarde, across King Georges Road at Wiley Park, then around eventually to Denman Avenue behind the Public School.
When there he saw the accused's car. He saw the men running through the school, saw Michael Kanaan jump in the front seat and the others follow, then the two cars (Laycock's car and the accused's) drove off down to Canterbury Road, left into Canterbury Road and the lead car was "followed" to about Hurlstone Park, when he lost sight of that vehicle. Laycock's car provided by the gang some weeks before was a two seater 'MX6'.
Back at the flat at Surry Hills he saw Michael Kanaan doing a re-enactment. He said: "The cops will think twice about targeting Lebs" and that "Bankstown would be next". Wassim El-Assad referred to the fact that he could see a "cop" "shitting himself" as he dropped to the ground. There was a conversation about shells being left. Michael and Wassim did most of the talking. The accused was present but did not say much.
Mr Laycock
In summary he confirms the family function at a club, then going to Croydon park 7-Eleven store driving Rossini. He was always driving as Rossini could not drive. He implicates the accused as being present at the 7-Eleven store at Croydon Park. He states that "Hass" (or "Easy") was in the accused's car with Kanaan and the accused and that it was a dark (or black) Land Cruiser. This was a car he had not seen before.
He said that there was conversation about there being "heat" in the area between Michael and Rossini and "they wanted to do something about it". He can't remember everything that was said because he wasn't paying close attention. He was instructed to buy pantyhose. He bought pantyhose at the 7-Eleven store. He gave the pantyhose to Alan Rossini who was talking to the "boys" in the car.
He and Rossini then went to Surry Hills to pick up firearms. The others did not come to the apartment. He said that his cousin picked up three hand guns (a .45 and a 9mm pistol at least) that he (Alan) got from a wardrobe and that he put them down his pants. Then they went to a house in the Punchbowl area. This was Hass' or Easy's place. There he saw Michael Kanaan, Wassim and Hass, the accused, himself and Alan Rossini. He indicated that Hass may have been Easy. Hass let them into the lounge room and there was talk amongst the "boys". Kanaan, El-Assad and Hass had handguns. He says that a stolen car was organised from the house with Tony Haddad, which was the person who organised stolen cars for the group. There they discussed getting fuel to torch the car. He said there was a discussion about "heat" on the boys who did business in the area, he recalled some reference about the accused and Hass' business in this discussion and that they were going to get back at the police for harassment. He left with Alan Rossini and said he saw the Land Cruiser out the front. They went to a 7-Eleven in Canterbury Road bought a silver tin and filled it up petrol. This is confirmed by a series of photographs from CCTV footage.
He said that he and Rossini went eventually to the back of Wiley Park School, and saw the Land Cruiser with the accused in it. The red Commodore that was stolen pulled up with El-Assad in the driver's seat, Kanaan in the passenger's seat and Hass in the back. He understood that the police station at Lakemba was to be fired upon by the boys in the red car.
He drove to Croydon Street Lakemba with Rossini. But as far as he was concerned there was no purpose in parking there other than the make sure they did what they said that they were going to do. He heard numerous shots and then he drove directly to Canterbury Road along Croydon Street. There he could see the police going to Lakemba in their motor vehicles. He and Rossini went back to Surry Hills. The others arrived there first. When he saw the others they are in the lounge room "jumping for joy" but he can't recall exactly what they said. He saw weapons on the coffee table. He said they never spoke about the matter again.
Dennis Green
Mr Green is relied upon by the Crown to support the account of Mr Rossini of the first meeting discussing the proposed shooting of which Rossini spoke. He was a "runner" then, and later a manager, for the group's cocaine distribution business. He was intimately involved in the drug supply enterprise. He said that one evening he travelled to the apartment in Surry Hills after El-Assad asked him to buy stockings. He bought four pairs of stockings. He was told by what El-Assad to get for dark pairs.
He was rung about 7-8 pm and arrived at the Surry Hills apartment shortly after from another safehouse in Oxford Street. He said he saw Michael Kanaan and others sitting around a table. He sat down next to Michael and "Ray" was opposite him. He said Ray had a "silver gun". They were cleaning guns at the time. He said Michael leaned over and whispered words to the effect: "Lakemba Police Station", and gestured to shoot. Green claims that he said to Michael "You are a sick cunt". He stayed no more than five minutes. He marked a plan, Exhibit H, showing the positions of people present.
He was shown a colour photograph of the 'DKs Boys'. He could not identify Danny Karam from the photograph Exhibit B11. He could not identify Charlie Gea Gea. He was shown another photograph which included the accused as he was said to appear in about 1998/1999. He could not identify the accused from the photograph of the accused and other Karam associates in Exhibit B12.
Roy Kennedy
Mr Kennedy gave evidence of a conversation he claimed he heard involved in with the accused some time in 1999 in which the accused allegedly made admissions concerning his involvement in the Lakemba Police Station shooting. Mr Kennedy said that he was a drug supplier working for the accused from late January 1999 until early July 1999. He gave an induced statement to police on 5 July 1999 because he wanted to be free of the accused and his own involvement in the supply of marijuana. He had other reasons, which included the fact that he was aware, or believed, he was under surveillance and that he was in jeopardy of arrest and prosecution. He gave a statement to police detailing his involvement in drug supply and including in that statement details of conversations he had with the accused.
After he started working with the accused he was present when Mr Jamal was talking to other people at a car repair business in which Mr Jamal allegedly had a "share". These other people were Lebanese people that he, Mr Kennedy, did not know by name. He said that they were talking about the "shooting up" of the Lakemba Police Station, Jamal allegedly said, "We done it to get them off our backs". The timing of this conversation, he said, was "about a month" after Mr Kennedy had heard about the shooting. Mr Kennedy cannot precisely time the occurrence of the conversation by reference to "summer or winter". He saw the accused drive a number of cars including "some type" of Land Cruiser. He said that on later occasions the accused raised with Kennedy the "Lakemba shooting", which he took to be raised as a threat to him.
Prosecution submissions
The learned Crown Prosecutor accepted the need for appropriate warnings in relation to each of the civilian witnesses, each for different reasons. The Crown correctly and properly concedes that Mr Rossini in the period of and either side of the events giving rise to the current charge had been involved in a large number "heinous crimes", extremely violent offences and serious drug supply which reflect that the deal that he struck with the prosecuting authorities was "extraordinarily" good, or beneficial. It was submitted that he, however, was not trying to "save his own skin" in this matter and was not necessarily telling untruths given the circumstances in which he came forward to give evidence.
As was conceded by the learned Crown Prosecutor in submissions, he was demonstrated in the course of his evidence here as having not given accurate or truthful evidence to this Court and was otherwise unimpressive. He denied, for example, ever having it in his possession a firearm for his work with DK's Boys. He claimed no memory of using violence to enforce the will of those who ran the criminal group. In the statement he gave in 1999 he gave an account of being present when Mr Laycock punched a man called 'Little Pauly' three or four times to the head causing him to bleed from the mouth before he took out a firearm (a pistol) pulled back the "top" and put the gun in the mouth of the runner while he was bleeding from the mouth. He initially read the statement at the relevant part and said he could "vaguely" remember the incident. When pressed he then remembered clearly that the firearm was a .45 "Chinese" brand automatic pistol and that he had a firearm in his possession over a period of six months when required. As the learned Crown Prosecutor said, it is difficult to understand how he could not remember this incident initially when pressed about it, when he had the opportunity of reading the statement that disclosed this before giving evidence and refreshing his memory of relevant events. One wonders how one could forget putting a .45 calibre pistol, with an engaged chamber, in the bleeding mouth of a person who he had seen beaten up. He had forgotten that he had said to the victim "You fuck around next time you get it" and had forgotten Laycock saying "See boys, if you are good, nothing will happen to you". Although, in fairness, he had disclosed these events in his induced statement.
The firearm had been given to him as a "present" by Alan Rossini. Alan Rossini also gave him a bullet-proof vest. As I have earlier stated, I must make some allowance for the fact that witnesses are endeavouring to remember events that occurred over 14 years ago in some instances. Further, witnesses have given evidence about this matter on a number of occasions. But making due allowance for some vagueness in the evidence or the inconsistencies between evidence in this trial and other trials or previous statements, I cannot ignore the relevance of lack of memory, and/or inconsistencies, to assessing the truthfulness, accuracy and/or general credibility of the witness in question.
Mr Green similarly had difficulty remembering particular acts of violence committed in his presence. One such act was the bashing of a man in a unit or apartment and the throwing of him over the balcony of the apartment to the ground below. Perhaps this was a common occurrence in Mr Green's experience whilst he was involved with the 'DK's Boys'. When he was reminded of this matter he indicated that a number of people including Michael Kanaan and Alan Rossini participated in both the bashing and the throwing of the victim over the balcony. Mr Rossini gave evidence of this event and was very particular about the fact, as he claimed, that the throwing of the victim was Michael Kanaan's idea, not his and he did not physically participate in this event. Of course, Mr Green's vagueness of memory, or lack of credibility, might not be a proper foundation for doubting the forthrightness of Mr Rossini. But the conflict in relation to this incident remains. If Mr Green was truthful about the matter it shows Mr Rossini's lack of truthfulness and/or his attempts to down play his own involvement in heinous acts.
Mr Green presented himself as a servant of Rossini and others, primarily concerned with the drug distribution business in which they are all involved. But it was revealing, so far as his moral standards were concerned as that they may reflect upon his credibility in a general sense, that when he worked for the group he saw his loyalties as being to Rossini and Michael Kanaan, and not to the runners with whom he worked regularly. He admitted that he was aware that the 'bosses' of 'DK's Boys' were men capable of great violence. He knew that if he revealed the failings of his runners they could, or would, suffer serious injury. Yet he still 'dobbed' them in. Some did suffer injury based upon information he provided to his superiors. At the time, he had no regret about that.
Mr Green's account of purportedly relevant events as I have earlier indicated quite at odds in material respects with the accounts of either Mr Rossini or Mr Laycock. The meeting, if it occurred on 31 October 1998, occurred much earlier in the day than it could have occurred on the versions of Laycock and Rossini. They were at a family gathering at Croydon Park at the time. He claimed possession by Mr Jamal of a firearm that neither Rossini or Laycock saw at any relevant time. If Mr Green's version is true, then in critical respects the versions of Rossini and/or Laycock cannot be true, or accurate. Of course, Mr Green, at least in his first statement, placed this meeting in the Surry Hills flat the day before he saw a media report on television about the Lakemba Police Station shooting. His evidence of the "timing" of the meeting was not as accurate. It may be that he is giving evidence of another event, at an earlier time, where there was a group of people together preparing for the shooting at the Lakemba police station. The Crown submitted that his account supported Mr Rossini's account of the first meeting where the shooting of the police station was first discussed. Mr Rossini does not speak of Mr Green being present or of the accused handling a gun on that occasion.
There are other reasons to not only be cautious about Mr Green's evidence, but to regard him as a witness of little or no credibility. One such example is to be found in a comparison of the plan he marked in this trial, asserting his memory of where people were sitting when he came into the room of the apartment at Surrey Hills on the occasion Michael Kanaan whispered to him something about shooting at the Lakemba Police Station and the plan he marked at an earlier trial. Notwithstanding the passage of 14 years and the absence of any memory of acts of violence and related matters in which he was on his own admission personally involved, he placed the accused opposite him as he sat at the table at the time that Michael Kanaan spoke to him. However, in a plan drawn by him at the trial of others in relation to the Lakemba Police Station affair on 12 May 2005 he put the accused in a different position. He marked "Easy" in a different position on that occasion rather than in this trial. The Crown said that the plan marked in this trial was similar to Rossini's. One of the problems with accepting Mr Green's account as supporting Mr Rossini, even allowing for the similarity of the markings of the positions of people on the respective plans, is that Mr Rossini made no mention of Mr Green being present. He made no mention during that meeting of the accused having a firearm, or even a concrete plan to shoot up the Lakemba Police Station with particular firearms produced for the purpose. Mr Green's version of events suggested that Michael Kanaan's whispered comments indicated that the plan was in place and that is what they were preparing for at that time. As for whether the meeting occurred the 'night' before the media reports of it, as he asserted in his first statement to police in 1999, this does not accord with Mr Rossini's or Mr Laycock's versions in a number of material respects. Mr Laycock bought the stockings, not Mr Green. There was no such meeting on Laycock's account. Mr Green arrived at the flat sometime shortly after "7 - 8p.m", not closer to midnight, which is Mr Rossini's account of the meeting at Surry Hills before the shooting. Mr Rossini did not mention Mr Green being present at the meeting the night before, or of, the relevant shooting. At neither meeting did Mr Rossini assert in his presence he saw the accused armed that the firearm or handling a firearm. Given the importance of Mr Rossini's account in proving the guilt of the accused, Mr Green's version either contradicts it, or does not support it in material ways.
Mr Green's version of events has all the hallmarks of telescoping, or mixing, events into the narrative he wishes to give about his knowledge of the shooting of Lakemba Police Station, which he knew, or believed, had been conducted by his associates, or bosses. If he bought stockings, it must have been for a criminal enterprise that Mr Rossini did not tell the Court about. Or else he is simply transposing, or making up, events unrelated to the Lakemba Police Station shooting, but adding in detail, such as inventing the claimed remark made to him by Michael Kanaan.
The assessment of Mr Kennedy's evidence
The Crown opened and closed its case with a submission that that the accused's connection with the President Smash Repairs was a motive for being involved in the Lakemba Police Station shooting because the police had been investigating the business in October, before the shooting had occurred expressed in Mr Kennedy's evidence of the accused's admissions. This claimed motive has no tangible connection with the claim of Rossini as to the reasons for the planned shooting as was offered by Kanaan on the first occasion it was mentioned a week or so before the evening of 31 October. There is no evidence, for example, that the accused's business was connected to Tony Haddad's business. The claim by Mr Kennedy that the accused said later "We did that to get the coppers off our backs", is not in accordance with the sense of grievance at what was claimed to be all treatment by Lebanese people by police in the Lakemba area. Greenacre is some distance from Lakemba Police Station. Why "shoot up" the Lakemba Police Station over an operation conducted in respect of a smash repair business in Greenacre? One might have thought Bankstown Police Station was closer and had more connection with the raids on the smash repair business. If at all. Who would know which, if any, particular police station was involved in that operation?
There are other aspects of Mr Kennedy's evidence that invite circumspection when approaching it. He clearly did not give a statement to police for altruistic reasons. He suggested, although not in these words, that he was told by police that if he gave information to them he would be assisted in some way. He cannot be expected to remember precisely what was said to him although he was not pressed on this matter. It was clear that whatever information he was giving to police was intended by him to implicate the accused in his self admitted criminal conduct. He was keen to volunteer information in response to questions that were put to him by police, in relation to the accused. I am not suggesting that words were put in his mouth, or that he was improperly led, or anything of the sort. I have no evidence of that. But he was clearly anxious in July 1999 to volunteer information and he was particularly anxious to untie himself from the accused. For that purpose was prepared to put the accused in as bad a position or light as he was capable.
The claimed timing of the first admission by the accused, does not accord very well with the commencement of his association with the accused and the date of the shooting of the Lakemba Police Station. He said he started working for the accused in late January 1999. This was almost 3 months after the shooting incident, not a "month or so". He cannot precisely time the alleged admission though. One would need to be satisfied that what the accused said was exactly, or very close to, the detail provided in the evidence of the witness. I appreciate that his evidence in this regard was consistent in chief and in cross examination. But he had refreshed his memory from a statement made in early July 1999. If he refreshed his memory from the statement, assuming that 14 years after the event he could not be able to remember the words said with any precision, his recollection in that statement, given up to five or six months after the event, would still have difficulty recounting what was said with precision. It is to be remembered also that Mr Kennedy was himself a reasonably regular cannabis user at the time.
Even if I could be satisfied that he is completely accurate in his recollection of what he claims the accused said, I could not be satisfied that it was a relevant admission. The statement made had the hallmarks of a boastful remark, offering up a motive or explanation, which was not one given by those who heard relevant discussions contemporaneous with the events asserts was expressed. As the witness conceded, later references to the Lakemba Police Station shooting were made allegedly by the accused in the context of him saying to the witness words to the effect, "that shows what I am capable of", he took as a threat. The other factor arising from Mr Kennedy's evidence that makes it unpersuasive is that what he remembers of the alleged admission was a very general claim of responsibility. There is nothing in the admission that reflects information that could only have been known to someone who participated in the crime and could not be possibly known by the listener. In any event, although it is a minor matter given the general 'chain' of responsibility, the accused was not one of the "shooters". So, in one sense, but not a legal sense, the claim attributed to the accused was in some respects objectively boastful.
The claimed admission of the accused was not recorded. He first recounted it at least some months after the event. It is not independently verified or supported. In its terms it was later used and interpreted as a threat for the witness to behave himself. I cannot be satisfied, even on balance, that the accused made the statements attributed to him by the witness. It does not give credible support to accounts from other witnesses which themselves have significant credibility/accuracy problems of their own.
Other inconsistencies
In respect of the witnesses Rossini and Laycock, and to a lesser extent Green, there was a considerable amount of cross examination upon claimed inconsistencies with previous evidence in relation to the subject matter of this trial and also evidence given by the witnesses in other trials. Similarly, there were claimed inconsistencies with statements made to investigating police in relation to this matter and other matters for which the witnesses had received protection by induced statements and/or indemnity and undertakings not to be prosecuted. I do not propose to dwell upon these matters. Insofar as there were established inconsistencies with evidence or statements provided on prior occasions with evidence given in this trial on the same subject matter, in fairness to the witnesses, many of those matters were collateral to, or certainly not central to, the purpose of this trial and particularly the events directly concerned with the Lakemba shooting incident. In relation to other criminal activity and events connected to the activities of DK's Boys, while there were particular inconsistencies established, many of them were more connected to, or caused by, the passage of time since the relevant events and previous statements and testimony without the witnesses having an opportunity to refresh their memory from statements given in relation to matters other than directly concerned with the Lakemba affair. I accept that the witnesses have not had an opportunity to read evidence given previously in any of the Lakemba trials, or and other trials for which they have been called to give evidence concerning crimes committed by claimed members and associates of DK's Boys or themselves. They did not refresh their memories from 1999/2000 statements relating to other criminal activity, as far as I am aware. Analysis of many of these other inconsistencies is unnecessary given that, in the context of the warnings required to be taken into account in assessing the witnesses and the circumstances in which the witnesses come forward to give evidence, the Crown case fails to establish guilt on an analysis of the inconsistencies established between the different witnesses concerning the central factual issues. Then there is the inherent unreliability of the witnesses, the matters that demonstrate that the witnesses have been untruthful or loose with the truth and/or inaccurate in their account of other events, including their own criminal activities on other occasions, or for other reasons arising from the evidence set out in the judgement.
Conclusion
I am not satisfied beyond reasonable doubt that the prosecution has proven that the accused was present at discussions to plan the shooting at, or near, Lakemba Police Station, or that he was present before and/or after the shooting to assist or support the shooters to commit the principal crime. I am not satisfied relevantly that he made admissions that were truthful that he had participated in, or was otherwise responsible for, the events of 1 November 1998 at Lakemba which are the subject of the charge for which he has been tried. Thus, I returned a verdict of "not guilty" to the count upon which he was arraigned.
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Decision last updated: 25 March 2013
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