R v Jason Hans Speelman

[2016] NSWDC 322

District Court

New South Wales

Medium Neutral Citation:

R v Jason Hans Speelman [2016] NSWDC 322

Hearing dates:

1 – 11 August 2016

Date of orders:

11 August 2016

Decision date:

11 August 2016

Jurisdiction:

Criminal

Before:

A Haesler SC DCJ

Decision:

Guilty verdict – Count 1- attempt murder

Guilty verdict – Count 2- use offensive weapon with intent to avoid apprehension

Catchwords:

Attempt murder; use offensive weapon with intent to avoid apprehension; judge alone trial; key directions; shot to head; identity of shooter; witness credibility; identification and recognition; circumstantial evidence; lawful apprehension.

Legislation Cited:

Crimes Act 1900
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)

Cases Cited:

Christie v Leachinsky [1947] AC 573
Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229

Category:

Principal judgment

Parties:

Director of Public Prosecutions - CROWN
Jason Hans SPEELMAN – accused

Representation:

Counsel:
Mr R Steward – ODPP
Mr E Wasilenia – for the accused

  Solicitors:
Ms L Cocca – ODPP
E. Ruth Cohen – for the accused

File Number(s):

2015/00103497

Judgment

1. On 1 August 2016 Jason Hans Speelman said he was not guilty to two counts alleging he on 8 April 2015,

1. attempted to murder Joseph Ison and,

2. used an offensive weapon with intent to prevent his lawful apprehension.   

His trial proceeded before me at Wollongong. Evidence and submissions concluded late yesterday.

2. A person accused of a serious crime can after receiving legal advice waive their right to trial by jury and elect for a trial by judge alone. Mr Speelman made that election. The Director of Public Prosecutions consented to that course.

3. As the trial was conducted without a jury, I have a duty not just to return verdicts, but also to expose clearly and if possible, succinctly, my reasoning process. I must include in my decision fundamental propositions, principles of law and any necessary warnings or cautions that apply and thus operate to guide my evaluation of the evidence. I am required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve all issues of law and fact that need to be determined so as to justify the verdicts reached.

Elements

4. The prosecution must prove each element of each offence against this accused. It is not in dispute however that two serious incidents occurred at Unanderra, south of Wollongong on 8 April 2015. What is in serious dispute is whether:

Count 1 - Jason Hans Speelman

1. Shot at Joseph Ison and,

2. He did so with intent to murder Joseph Ison.

Count 2 - Jason Hans Speelman

(1)   used an offensive weapon and,

(2)   he did so with intent to prevent his lawful apprehension.

Key Directions

Count 1:

• To "shoot at" means - shoot to hit.

• The intention that the prosecution must establish is an intention to kill.

Count 2:

• A knife is an offensive weapon.

• The intention that the prosecution must establish is an intention to prevent the accused's lawful apprehension.

• A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person is committing, or has committed, an offence. A police officer may also arrest a person without a warrant if directed to do so by another police officer: s 99 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). Section 210(a) provides arrest is governed by the provisions in s 202.

Intent

5. Intention may be inferred or deduced from the proved facts and circumstances. A person's acts and/or words may themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person's act and where he deliberately does that act, I may readily conclude that he did that act with the intention of achieving that specific result.

Two Counts

6. I must give separate consideration to the individual counts and whether the elements of a count have been proved beyond reasonable doubt. I am entitled to bring in different verdicts if there is a reason in the evidence for that outcome. I must consider the whole of the evidence relevant to a count. I do not compartmentalise the evidence or look at parts of the evidence in isolation. All of the circumstances established by the evidence must be considered and weighed in deciding whether the prosecution has proved its case to the high standard required so far as each count is concerned.

Onus

7. The most important direction in any criminal trial is this, the accused Mr Speelman has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only reach a guilty verdict if I have no reasonable doubt the prosecution has proved its case, that is, each element of the offence as charged. If the prosecution fail to meet that high onus or if I have doubts about their case in respect of one or of the other or both counts, Mr Speelman must have the benefit of any reasonable doubt and I must return a verdict of not guilty in relation to the count about which I hold such a doubt.

The Accused's Silence

8. Mr Speelman chose not to talk to police. His exercise of that right to silence must be recognised. Mr Speelman did not give evidence. He had no obligation to do so. He called evidence in his case and I will take that evidence into account. He is presumed to be innocent. As a matter of law his election not to give evidence can never be used against him. It constitutes no admission by him and no such inference must be drawn.

9. His silence in court cannot be used to fill gaps in the evidence. It may not be used by me in assessing whether the prosecution has proved its case beyond reasonable doubt. I do not speculate about what he might have said in evidence.

Intoxication

10. Attempt murder is an offence of specific intent. Use an offensive weapon with intent to prevent lawful apprehension is an offence of specific intent. Part 11A Crimes Act 1900 applies. Accordingly, evidence relating to the accused's state of intoxication at the time an offence is alleged to have occurred must be considered. The law recognises that in certain circumstances an intoxicated person may be so intoxicated he acts without forming any intention at all.

11. On the other hand a person may be considerably affected by an intoxicant yet still be able to act intentionally. The fact that his judgment was affected so that he acts in a different way from the way in which he would act if he was sober, does not necessarily mean that he was not acting intentionally. The prosecution must prove beyond reasonable doubt that notwithstanding any drugs or other intoxicant that he may have taken, he did in fact act intentionally, that is, form the intention to murder (count 1) or to prevent his lawful apprehension (count 2).

Evidence

12. The evidence must be considered as a whole. Some of the evidence is direct, some circumstantial. Some evidence was not in dispute, some was hotly contested. In evaluating the evidence at trial I can use my life experiences and my training and experience as a lawyer and judge. As part of my reasoning process I can make a value judgement. I cannot however use my personal experience to make findings of fact or to draw inferences unless that personal experience satisfies the test relating to common knowledge s 144 Evidence Act and the requirements in s 144(4), that necessary things be done to ensure a party is not unfairly prejudiced: see Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229 at [68]-[69].

Assessing Witnesses

13. For most people giving evidence in a trial is not common and may be a stressful experience. I do not jump to conclusions based solely on how a witness gives evidence. I am aware that people react and appear differently. Witnesses come from different backgrounds and have different abilities, values and life experiences. There are many variables. I must take care.

14. The manner in which witnesses give evidence may not be the only or even the most important factor in my decision about whether to accept them or not. Obviously, if a witness lies that will affect my assessment of them. Some honest witnesses can be unreliable. These are all matters I must take into account.

Inferences

15. As I must be satisfied of the guilt of the accused beyond reasonable doubt, I should be extremely careful about drawing any inference adverse to him. I must carefully examine all the evidence in relation to all the relevant circumstances and examine any possible inference to ensure that it's a justifiable inference. I must not draw any inference from the direct evidence against the accused unless it is the only rational evidence in the circumstances.

Circumstantial Evidence

16. There is direct evidence from Joseph Ison that Mr Speelman shot him. A robust attack was made on Ison's credibility, reliability and honesty. There was an attack on his capacity to properly identify his shooter given the available lighting and the injuries he suffered. Where the Crown rely on one person to prove a case or a critical part of a case, it is important that I exercise caution before I convict the accused. For those reasons I must examine Ison's evidence very carefully before I can safely act on it to the high standard required.

17. There are many dangers with identification or, as here, recognition, evidence. A witness may sincerely believe their identification is correct, even though completely wrong. Errors may also occur even when the witness has previously known an accused. Just because a witness claims to have known the person there still remains the possibility of mistake. I bear in mind the special need for caution before accepting identification evidence and the reasons for that caution both generally and in circumstances of the case: s 116 Evidence Act 1995.

18. Long experience, both my own and of judges going back centuries, has shown that such evidence may turn out to be unreliable. Long experience has shown that a witness may make dogmatic assertions of recognition or identification in a way that precludes proper testing by cross-examination and that such witnesses who make such assertions can be shown to be wrong.

19. I must carefully consider the circumstances in which Ison made his observations, especially those circumstances that may have led him into error. These include the available lighting, more particularly the lack of it; Ison's expectations that Speelman would come to the premises that night; and his possible incapacity due to fear; stress and/or drug use. I must also consider the opportunities he had to see the shooter, the length of time he had to do so, his distance from the shooter and the impact of the subsequent trauma on him.

20. Against the possibility that a finding of guilt could not be made based solely on Ison's identification of Mr Speelman, I must consider what other evidence supports this identification. Possibly suspect identification or recognition evidence can still form part of the circumstantial case made for the prosecution. Accordingly, to find the accused guilty I would have to be satisfied that Speelman's guilt is the only reasonable inference that can be drawn from the circumstances established by all the evidence. I must consider the evidence as whole.

21. I do not disregard an item of evidence because when I consider it alone it does not support a reasonable inference of guilt. One piece of evidence may resolve any doubts I have about another piece. However, I remind myself, if there is any reasonable explanation of those circumstances which is consistent with the accused's innocence, then the prosecution will not have proved his guilt beyond reasonable doubt and I must acquit him.

22. Here the defence argue, particularly in relation to count 1 that Ison has deliberately and maliciously misidentified the shooter as Jason Speelman. It is also argued that the circumstances are such that he could not have identified who his shooter was. I do not need to be convinced that this is what happened. I must acquit if these or some other explanation is reasonable in the light of all the evidence at trial.

Hearsay Evidence

23. Hearsay evidence, that is what someone said to them or someone said someone said, may be unreliable. It may be unreliable because the original person who made the representation cannot be questioned or for other reasons the truth or accuracy of the original representation cannot be assessed. I must warn myself of the need for caution in determining whether to accept such evidence and the weight to be given to it.

24. Particular care must be taken in relation to any representation said to have come from Robert Fitzgerald as he was not a witness of credit or any credibility. This includes what is set out in his statement to police, exhibit AD. I cannot and do not take into account representations and hearsay comments attributed to witnesses said to be admissions by the accused; applying s 60(3) Evidence Act.

Evidence Summary

25. Just before 1am on 8 April 2015, a person wearing a white top walked down the driveway on the western side of 19 Graham Street, Unanderra towards the garage at the rear of the premises. At that time Joseph Ison was hiding at the corner of the house in shadow. A shot was fired. The person wearing the white top then pointed the gun at Ison. The gun was fired. The bullet entered Ison's head below his right ear. It exited at the base of the hairline on the mid-point of his neck, the occiput: see photos, exhibit C, and the certificate of Dr Liu, exhibit T.

26. The shooter then went to the front of the property. Although wounded Ison went to the eastern side of the house. Another shot or shots were fired at him. Ison retreated to the rear of the premises. The shooter left heading east down Graham Street. Police and ambulance were called.

27. When asked "Who shot you?" Ison replied "Jason Speelman": transcript 44. When asked "Why?" he is recorded as saying "He thinks I was rooting his girl." As a consequence police circulated information that Mr Speelman was wanted for questioning. A gold Nissan Pulsar belonging to his mother was also nominated of being of interest to police. That vehicle was found later that day apparently abandoned.

28. At about 9am the same morning, police saw Jason Speelman walking east on the southern footpath of Northcliffe Drive, Berkeley. When approached by police Speelman was asked to stop. He did not. Police were concerned he was armed. They drew their weapons. Speelman produced a knife and held it above his head and then towards police. He also held it parallel to his chest, with the tip pointed at his throat. He was told to drop the knife. He did not do so.

29. The direction where he was pointing the knife would alternate. At times he pointed it at police and other times he had the knife at his own throat. Speelman said a number of times "Kill me, just kill me" and "I just want to die. Just kill me". Tasers were fired. Eventually one of them worked. Speelman dropped to the footpath and dropped the knife. He was arrested, handcuffed and placed in custody: Senior Constable Crosland, exhibit E and Senior Constable Lloyd, exhibit X.

30. At Lake Illawarra Police Station Speelman was seen to repeatedly bang his head on the metal frame of the dock, repeating "Why don't you just kill me. I want to die." Sergeant Brown, the custody manager, noted that he appeared to be intoxicated with some substance: exhibit Q. Detectives also formed this opinion and "time out" was allowed so he could recover before being spoken to. Later, on being told he had been charged with "shooting Joe Ison", he replied "I can't remember anything". He refused to be formally interviewed.

Issues in Dispute

31. Two significant issues were raised at trial.

1. Can the prosecution prove beyond reasonable doubt it was Jason Speelman who fired the bullet that went through Joseph Ison's head?

2. Can the prosecution prove beyond reasonable doubt that in his production and use of the knife Jason Speelman intended to prevent his lawful apprehension?

Joseph Ison

32. Joseph Ison has a criminal record. He was a drug dealer. He has known Speelman for some time. He gave conflicting accounts as to how long he had known him and how they first met but it was not in dispute they were well known to each other by April 2015. It was put to him in cross-examination by Mr Wasilenia, who appeared for the accused, that he had asked Speelman to act as his protector at some stage: transcript 32.

33. In April 2015, Speelman and his wife Michelle had separated. Michelle Speelman started spending time with Robert Fitzgerald. Ison was friendly with Robert Fitzgerald. Fitzgerald has the nickname "Builder".

34. In 2015 Ison was not friends with Speelman. Speelman has the nickname "Spelly". Speelman accused Ison of owing him money. Ison did acknowledge there had been a debt but not that there was then any debt owed. However, in 2015 it appears he was avoiding Speelman.

35. On 7 April 2015, Ison spoke by telephone with Robert Fitzgerald. What was said concerned him. He drove to his Fitzgerald's home in Graham Street. Another friend, Steven Galea, also came around. The men were in Fitzgerald's garage at the rear of Fitzgerald's father's home. Fitzgerald told Ison of concerns he had about Speelman. At about 10pm Ison moved his car away from Graham Street and came back. Later, looking up the driveway, under the open roller door of the garage, Ison saw a silver Commodore drive past. He believed this car was Speelman's as he drove such a car. Even later still, after midnight, he saw a gold coloured car drive past: transcript 9. He believed this car to be Speelman's mothers.

36. After the gold car had passed the three men left the garage. Ison took a machete with him. He says he left it near the steps of the southwest corner of Fitzgerald's house. Police found it near there later that morning. Ison says he did not touch the machete after putting it down. There was no evidence to the contrary.

37. Ison walked up the drive and east down Graham Street towards number 9: see satellite map exhibit A. He looked towards number 7. He saw a man in a white top. He recognised him as Jason Speelman. He saw the man reach for something at his waist. He believed it was gun. He ran. He yelled to his friends "He's coming. He's got something": transcript 12. They ran too.

38. At the southwest corner of the house Ison stopped and hid in the shadows. A man in a white top came down the drive. He heard that man yell out something. He heard, "Builder get out here you dog" or "something like that": transcript 18. He later agreed under cross-examination that these words were not recorded in his police statement made soon after the event.

39. That man turned towards him and shot him. Ison said in evidence:

"I turned like that a little bit to look and I saw Jason with the gun. Straight look at me, eyes and bang just pulled the trigger. Jason with the browney coloured gun look in the eyes and just pulled the trigger and then I got shot.": transcript 19.

He got up saying, "You shot me you dog Spelly": transcript 20. He later agreed under cross-examination that this comment was not recorded in his police statement.

40. He said he chased the shooter a short way up the driveway and then went to the rear of the house and up the eastern side. He said he saw the shooter turn and fire at him. He retreated to the back yard.

41. He was agitated and running around. He eventually received some attention from Galea and ended up prone on the front verge of the house where police and ambulance found him. He said he had no recollection of what occurred while he was in the ambulance.

Challenges to Ison's Account

42. The defence case is that Ison either wrongly identified the shooter as Jason Speelman or that he did so deliberately and maliciously.

43. Ison admits a criminal past. He was taking medication for a bi-polar disorder. He has used methylamphetamine. He recalls drinking alcohol and smoking pot that day. He conceded that he may have taken "Ice": transcript 73. He said the same to Wollongong Hospital staff: exhibits 4 and 5. St George Hospital notes record "Impression: minimal drug use, no significant abuse or dependence": exhibit 5.

42. If he ever was, he was not in April 2015, Speelman's friend. It was put, but denied, that he nominated Jason Speelman as being the person who shot him because; first. it would get rid of him for his best friend Robert and aid Robert's relationship with Michelle; secondly, he would not have to pay Speelman back money he owed him.

43. Mr Wasilenia put to him he was "trying to kill two birds with one stone, isn't that right?". Mr Ison replied "No": transcript 110.

44. Ison said things in evidence that he did not say in his statement to police. His explanation being:

"I just got out of a coma from being shot in the head to having surgery. Let someone shoot you in the head, you go in there and have surgery and let someone talk to you": transcript 28.

47. Detective Briffa, who interviewed Ison at the hospital, told me that Ison appeared to him to be alert and understood what was asked of him.

48. In his evidence Ison did at times appear to jump to conclusions. An example is when, in chief, he said he recognised Speelman and when Speelman reached for something "He thought straight away it was a gun": transcript 13. He did not say this in his statement to police. He explained he had presumed what he saw was a gun because of his prior belief Speelman had firearm convictions. He was however correct, the man in the white hoodie did have a gun. The question arises, did he similarly presume that the shooter was Speelman because he was expecting his attendance at Graham Street?

49. He was fearful of what Speelman might do to Fitzgerald. He believed Speelman had access to firearms and he was shot that night by someone who he did not or could not see clearly, but who he presumed to be Speelman. That false presumption may have been contributed to by his anxious mental state, which in turn was impacted upon by his mental illness, his medications and illicit and legal drug use. I must be careful: has he now reached a solid, unshakeable but mistaken belief?

50. Another issue requires care: Ison did not present well. He was disdainful of police and, while at least polite to me, showed little respect for court procedures. He did not present as a person who respected his oath or the truth. He also had the problems noted above.

51. He was however undoubtedly the victim of a very serious criminal offence. To what extent then is such a person to be accepted when he accuses another of committing a very serious criminal offence?

Ambulance Officer Benson

52. Ambulance officer Benson attended Mr Ison at Graham Street and was with him in the ambulance. She asked "Who shot you?" Ison replied "Jason Speelman". She asked "Why?" She recalls his answer as "He thinks I rooted his girl (or chick)": transcript 49. Constable Broers, who was also in the ambulance, also recalls this conversation.

53. There is no suggestion in any of the evidence that Ison ever had any relationship with Mrs Speelman. It is also clear that night a number of actors in this drama were concerned about her relationship with Fitzgerald and its consequences. Whether Ison misspoke or those in the ambulance heard "I", when Ison, speaking with a severe wound to his jaw, said "he", I do not need to determine. I could not find however, as Mr Wasilenia suggests, that this particular piece of evidence undermines Ison's credibility.

Mrs Palaez

54. Mrs Palaez lives opposite 19 Graham Street. From her bedroom window she has in daylight an unimpeded view of the driveway where the incident occurred, exhibit D. After midnight she was in bed awake. Her bedroom window and blinds were open. She heard what she recognised as a shot. She has some experience with firearms.

55. She saw a man in a white top, she told police and the Court, it was a t-shirt at number 19, "down the driveway near the garage". The man raised his right hand outstretched and pointed toward the left, at an angle, toward the garage the corner of the house. She saw a muzzle flash, she heard a shot, she heard yelling: transcript 54. The man ran up the driveway. She then saw and heard him fire shots towards the front north eastern corner of the house.

56. Her evidence is important. She said the lighting was good enough for her to see down beside the house to the garage and she could do so from her window across the street. In general terms what she described confirms the account given by Ison about what happened where and in what sequence.

Gary Fitzgerald

57. Gary Fitzgerald, Robert's father, gave evidence reluctantly. His memory had to be refreshed. He said that he knew Jason Spellman. He said a silver car had been parked outside his house earlier that day. He said that Speelman came to his house on the evening of 7 April 2015 about 8.30pm. He told police Speelman was wearing a white jacket. "Speelman said he'd be back later": transcript 118. He described waking to the sound of a shot.

Barbara Pollard

58. Barbara Pollard was staying at 18 Graham Street with Gary Fitzgerald. On the 7th she saw a man in a white hoodie outside her house standing in the rain. The morning of the 8th she was woken by a noise. She then heard screams. She looked out the front and saw a man in a white hoodie. She heard a shot. White hoodie was pointing to the south east corner of her house.

59. She called triple-0. That call was played as exhibit E. It was logged at 00:53:59 on 8 April 2015: exhibit R.

Steven Galea

60. Steven Galea was asked to drop by 19 Graham Street during the day of the 7th. He did so. He saw Jason Speelman sitting in a silver Commodore outside the premises; he spoke to him. He also spoke to Robert Fitzgerald by phone. He handed his phone to Mr Speelman so he too could speak to Fitzgerald. He and Speelman both left the area separately.

61. Later that day and night he was at the Fitzgerald garage. He was there when Ison arrived.

62. Galea, said he was smoking ice and betting using his phone. The garage door was partly up. He said "You could see the street". At some stage someone said "That's his car". This was said twice. The second time the three men walked into the street Ison went further to the east. He then heard Ison and saw him bolting towards them saying, "He's here": transcript 178. He ran to the garage and held the door shut. He heard a shot and screams and a second shot, then silence. After a time Ison came to the garage door, he was injured. Galea tended to him as best he could.

Robert Fitzgerald

63. Robert Fitzgerald was not a co-operative witness. He was contemptuous of the Court. I am prepared to accept the events were traumatic. He was reluctant, also understandably, to give evidence against a man whose wife he was then and now seeing. That said, absent any expert evidence to the contrary I formed the opinion he was not making any effort to assist the Court. Leave was given to the Crown to attempt to refresh his memory. When he failed to co-operate leave was given to cross-examine him based on the statement he made to police which is now exhibit AD. That statement was made on 8 April 2015. See separate judgment. That statement was hearsay, it was made by someone of no credibility and was unable to be tested. I must be extremely cautious about what weight I give it. Frankly, unless what Robert Fitzgerald said in it was uncontroversial or was corroborated by other witnesses or independent evidence I could not otherwise accept what he said. I do not have regard to any admission attributed by him to Mr Speelman or anything which he says was said by Speelman to him.

64. In brief summary he corroborated or otherwise supported, uncontested aspects of other's evidence. That evidence indicated that he was fearful of Speelman; that he did see Speelman in his car on the seventh; and that he spoke to him on the phone that evening. I have no regard to what he says was said. That call was at about 20:20 according to other evidence.

65. He then describes in details that match the evidence of others the sequence of events in his garage between midnight and 1.05am.

Michelle Speelman

66. Michelle Speelman found it distressing to give evidence in a trial involving in her husband (soon to be divorced) and father of her children. She objected giving evidence. I compelled her to do so: see separate judgment. Her testimony was supported by text and phone records: exhibits AA and AB. It was supported by extracts from telephone conversations recorded by gaol authorities: exhibit AB.

67. In brief, I am prepared to accept the following as proved: She and Mr Speelman had separated; the separation was distressing to them both; she had formed a romantic attachment with Robert Fitzgerald; she tried to keep that from Mr Speelman; he was suspicious; he was at times emotional and in the past had threatened suicide on one occasion, this involved a knife. He behaved in a manner that distressed her, such as coming uninvited to her sister's home in Berkeley. On that occasion police were called.

68. About a week or so before the incidents of 7th and 8 April, while at his mother's house, he showed her something that she said "may" have been a gun. She said it was only partially visible under a cloth. She was also aware that he had gone to gaol for firearm possession some years earlier. The fact that he was in gaol is not otherwise relevant.

69. On 7 April 2015 Mr Speelman came to where she and the children lived at Sanctuary Point. He accessed her phone without her permission. On it he saw a message between her and Robert Fitzgerald. She thought the message or messages had been deleted. These messages upset him. He said to her among other things, "You just killed me".

70. That afternoon calls and texts were sent to her from Mr Speelman, most went unanswered. Mr Speelman is recorded as saying, for example at 23.31, "I'm gutted I just want to die". She got through to him, returning a call at 23.33pm. He was hysterical, he appeared concerned that she was worried that he might hurt himself. At 12.55am she called the number he had used earlier but it was not a number she otherwise had recorded in her phone. She heard "swishing sounds" that sounded like he was running. Versions of this conversation were put to her. Some of the versions put in questioning were inadmissible as evidence as she did not adopt them. She did however accept that she heard Speelman saying "I've done something bad...don't worry I didn't get your precious builder". He also mentioned something about hiding in the bushes.

71. Later that morning at 1.06am, she rang that number again. His mother, Mrs Norma Speelman, answered. She then put Mr Speelman on the phone. He said to Michelle Speelman, "It was you, it was always you, I love you".

72. Michelle Speelman agreed she had spoken to Mr Speelman at the gaol by phone on a number of occasions. She agreed she said what is recorded on the transcript, exhibit AB.

73. In cross-examination she agreed with the suggestion by Mr Wasilenia that at no time did Jason Speelman ever say to her that he had shot Ison. She advanced a reason for that, an opinion that for present purposes I disregard as it was not responsive and could not be regarded as evidence in the trial.

Exhibit AB

74. Exhibit AB, the gaol call transcript, has to be considered in context. From the defence perspective it is consistent with the accused repeating how upset he was after receiving confirmation Michelle Speelman was romantically attached to Fitzgerald and of how that confirmation had tipped him over the edge into a potentially suicidal state. In that context the call at 14.04 on 4 May 2015 records him responding sarcastically to her suggestion he tried to murder someone.

75. The Crown case is there is no sarcasm, rather the call at 14.04 on 4 May 2015 contains an admission of guilt. What he said in the recorded call, the Crown submit, is "clear and unambiguous": "Yes, he (Fitzgerald) is (the drug dealer) see just like I tried to murder someone."

76. The defence response is that denial is always advanced by Mr Speelman and that what the Crown rely on was the accused being sarcastic, at the end of an emotional and volcanic conversation between two people who had, and perhaps still, loved each other.

Crime Scene and other Evidence from Police Investigations

77. The police evidence was relatively uncontroversial. At least two shots were fired; one at the rear south-west of the house near the garage; another hit the fence on the eastern side. I am prepared to accept another initial shot was fired in the driveway before Ison was shot. That conclusion is based upon evidence as to where items such as bullets or bullet fragments were located and the evidence of other witnesses about hearing multiple shots.

78. There is a street light out the front of the premises but its direct light could not have reached the western wall of the house. There was minimal other lighting in the yard and driveway. Police torches were needed to locate small items like shell casings and bullet fragments.

79. That morning police circulated the description of Speelman as wearing black pants and a white hoodie. On arrest he was wearing shorts and black hoodie. No gunshot residue was found. No gun was found. The gold Nissan was found between Graham Street and Mrs Norma Speelman's home in Berkeley: map, exhibit AC.

80. Phone messaged recovered and times of calls were obtained using police search programs. Text messages were recovered: exhibit AA. They reveal when calls were made from Mrs Speelman's phone, Mr Speelman's phone and his mother's phone: exhibits AA and AB.

Evidence relating to Count 2

81. Most of the evidence relating to what occurred when Mr Speelman was first seen by police in Northcliffe Drive, Berkeley until his formal charging at Lake Illawarra Police Station, was uncontested. Most of the evidence came from the reading of police statements that were tendered as exhibits.

82. Senior Constable Lloyd's account seems to me a fair representation of the events: exhibit X. So too is that of Constable Croslyn: exhibit E.

Submissions

83. Mr Steward, for the Crown, stressed that the evidence corroborating the accuracy of Ison's account and what he submitted was Ison's reliability. He suggested it was implausible Ison could have had the presence of mind to falsely implicate Speelman, or to have made a fundamental mistake about identity given the opportunities to see the man in the hoodie both in Graham Street and at close quarters near the garage. He drew my attention to the times of various calls and what the accused said to his wife: "I did something bad, I didn't get your precious builder." He submitted, exhibit AB contained a telling slip. All the evidence he submitted proved beyond reasonable doubt count 1.

84. As to count 2 he said even if Speelman did in fact want to be shot he was acting to avoid apprehension. That apprehension was lawful.

85. Mr Wasilenia, as to count 2, drew my attention to the provisions of the Law (Enforcement Powers and Responsibilities) Act. He raised these questions:

1. Were the police acting lawfully when they stopped Speelman?

2. Were they in fact trying to apprehend or arrest Speelman or simply reacting to his suicide attempt?

86. He said that real doubt existed as to whether elements of lawfulness and in particular intention had been proved to the high standard necessary.

87. So far as count 1 was concerned he made a sustained and detailed attack on Ison's credibility, reliability and truthfulness. He took me to examples which would cause me, he suggested, to question whether anything said by Ison could be relied upon at all, let alone to the standard required in a criminal trial. He pointed to the absence of forensic evidence linking Mr Speelman to the crime: no DNA; no gunshot residue; no prints; no gun; and, no white clothing.

88. All are relevant but, with respect, the absence of evidence does not necessarily provide evidence of an accused's absence from the scene. I have to note that there was a gap in time in the evidence about Mr Speelman's whereabouts; from when he spoke on the phone to Michelle Speelman just after 1am to when he was seen by police at 9am within short walking distance of his mother's home.

89. As to exhibit AB, I have already addressed his point that the Crown are making too much of two people slinging mud at each other. He urged me to consider the context of the conversation.

90. He said that that on the night of the shooting the evidence establishes that Mr Speelman was upset and who would not be. But there is no evidence that he intended any violence or directly engaged in any violent act other than that from the discredited Ison. He said that when I consider all the evidence I could not be satisfied beyond reasonable doubt that Mr Speelman was the shooter. He submits, all the evidence really shows is that night Speelman was upset and his wife was fearful that he intended suicide.

91. So far as count 2 is concerned he submitted that whatever way I approach the evidence, I could not be convinced beyond reasonable doubt that Speelman's intention was to avoid lawful apprehension.

Consideration - Count 1

92. Have the prosecution proved beyond reasonable doubt Mr Speelman was the shooter? There is no evidence Mr Speelman was intoxicated at about 1am. There is evidence he was intoxicated at 9pm. Intoxication was not relied upon by Mr Wasilenia, however as there is evidence about it, it must be considered.

93. The following however has been established by the evidence or can properly be inferred from proved facts;

1. In 2015 Mr Speelman and his wife had separated.

2. In early April 2015 Jason Speelman was concerned that his wife was romantically involved with a former friend Robert Fitzgerald.

3. Robert Fitzgerald's nickname is "builder".

4. Mr Speelman took steps to confirm those concerns. Those steps included parking near his wife's sister's home in Berkeley and near the Fitzgerald home in Graham Street, Unanderra at 3pm on 8 April 2015. He searched Mrs Speelman's mobile phone and found what he was looking for in texts between his wife and Robert Fitzgerald.

5. Mr Speelman was upset by this finding. He told Mrs Speelman "You just killed me, just kill me".

6. Speelman has history of suicide attempts.

7. Speelman had previously had access to firearms. In the weeks before 8 April he held out to Mrs Speelman he had a firearm at his mother's home at Werona Street, Berkeley.

8. At about 8.30pm Speelman went to 19 Graham Street, he was wearing a white top, he spoke to Gary Fitzgerald. He said he would be back. On the night of 7th Speelman woke his mother and borrowed her gold Nissan Pulsar.

9. He also accessed and took her phone; number 0421 507 113.

10. Speelman sent texts to his wife that night. They also at times called each other. She heard him in the background when she rang his daughter from a previous relationship, she said "he seemed very upset".

11. Mr Speelman also had a phone in his name; number 0422 284 679.

12. Robert Fitzgerald asked his friends Joseph Ison and Steve Galea to stay with him in his garage at the rear of 19 Graham Street. Fitzgerald and the others were fearful that Mr Speelman would come to his home. Illicit drugs and possibly alcohol were consumed by some or all of them. At 20.20 Speelman spoke to Robert Fitzgerald by telephone for 163 seconds: exhibit AB.

13. At 11.33 Mrs Speelman called Mr Speelman on 0422 284 679. He was hysterical. She was worried he would do something irrational as he had hurt himself before.

14. Before midnight the men in garage, looking under the open roller door, saw a gold coloured Nissan drive past in Graham Street. Ison and Fitzgerald recognised this as belonging to Mr Speelman's mother.

15. The men went into Graham Street. As they left the garage Ison took a machete with him. He left it at the rear of the house.

16. Ison went further down Graham Street than the others. Outside number 7 he saw the man in a white top. That man reached for something. Ison believed it to be a gun. Ison ran back yelling "He's here, he's got something".

17. Fitzgerald and Galea ran to the garage. They closed the roller doors and held the side door shut.

1. Ison ran to the south-west corner for the house and hid in the shadow.

2. The street lighting was sufficient for a neighbour across the street to see the man in white top go down the driveway, raise his arm and point the gun towards the rear south-west corner of the house.

3. A man in a white top did go down the driveway. He fired shots; one, possibly two. Ison did not mention this other shot but others do. Two bullets or fragments were found at the rear of the house in positions consistent with this hypothesis and no other.

4. When the man in the white top got to the rear south-west corner of the house he extended his arm, and fired a shot directly at Ison. He could not have been very far from Ison in that time. The bullet went through Ison's head.

5. Ison yelled something. The man ran to the front of the house. Ison went to the north-east corner. The main fired another shot at him and ran off down Graham Street.

6. At 12:55:53 a call was made to 000 from 19 Graham Street: exhibit R.

7. At 12.55 Mrs Speelman rang 0421 507 113: exhibit AB. Mr Speelman answered, he appeared to her, from the noises she heard, to be running. He said "I've done something bad...don't worry I didn't get your precious builder".

8. At 1.05 Mrs Speelman rang Mr Speelman's phone. Mrs Norma Speelman answered, she then put her son on the phone.

9. About 9am on 8 April, Mr Speelman was seen in Northcliffe Drive, Berkeley near his mother's home: exhibit AC. He was wearing a dark jacket and shorts, he had a knife with him, he was apparently intoxicated and behaving in a disturbing manner and confessed to be suicidal: exhibit B.

10. The gold Nissan was found on 9 April 2015: see map, exhibit AC, in a cul-de-sac in Berkeley, apparently abandoned. DNA testing reveals that at some time Mr Speelman had been in the car: exhibit L.

11. In telephone conversations with his wife from gaol Mr Speelman at no time said he shot Ison. He did allude to having done so at the end of the conversation in exhibit AB. On its own this could not constitute an admission as I could not rule out the possibility it was said sarcastically to goad Mrs Speelman. The words were used so I do not ignore the evidence. It can be used as a strand in the Crown's circumstantial case, taking into account all the cautions that apply to such evidence.

Intoxication

94. There is no evidence that Speelman was intoxicated at or about 1am. I could not draw any inference from the evidence that he may have been intoxicated at 9am that morning.

Can I rely on Joseph Ison?

95. Joseph Ison knew Jason Speelman and had known him for many years. His account of what occurred matches that of other witnesses in the timeframe discernible by objective evidence. He did tend to jump to conclusions. He has a troubled history including drug use and mental illness. He suffered significant and traumatic injury. He did not however lose consciousness while the shooter was present. He had the opportunity to see and recognise the shooter in Graham Street given there was street lighting. At the scene of the shooting, although he was in the dark, there was some light down the driveway towards the garage. The shooter would have been close to him. I accept Ison looked straight at him before he was shot. He also had some opportunity to see the shooter when he was out the front of the house shooting at him for a second time. Even though severely injured he immediately identified his shooter to those in the ambulance. He did not have and he may never had had a particular regard for the truth or the legal system. He had no respect for police. His evidence was at times inconsistent.

96. He did immediately identify the shooter as a person he knew well. The reasons given for him to falsely nominate Speelman, he did not accept, nor could I.

97. That said I must and do retain a healthy scepticism about anything he said and must subject it to considerable scrutiny, particularly by comparing it with other proved circumstances.

Conclusion

98. The shooter fired directly at Ison with an intent that could only have been to kill. When those proved circumstances, which I have summarised, are considered in conjunction with the evidence of Ison, any doubts I may have about his reliability and credibility so far as identification are removed. I am satisfied beyond reasonable doubt that on 8 April 2015 Jason Speelman shot at Joseph Ison and he did so with intent to murder Joseph Ison.

Count 2

99. Have the prosecution proved beyond reasonable doubt Mr Speelman's use of the knife was to avoid lawful apprehension? I have to ask to what extent did his state of intoxication, at 9am, impede his capacity to perform a necessary intention. There is evidence police thought he was intoxicated. I have to take into account that fact in determining whether he had the intention to cause a specific result necessary to found the charge. There is no evidence to indicate by what, and to what extent, he was intoxicated.

100. Given his actions appeared to be willed and purposeful, if erratic and self-destructive, the prosecution have to my satisfaction established beyond reasonable doubt that he intended to do what he did.

101. The real question for me is was it to avoid lawful apprehension? Mr Wasilenia submits the police had no right to stop Mr Speelman in Northcliffe Drive citing the well-known case of Christie v Leachinsky [1947] AC 573.

102. Police do have power to stop and arrest. Those powers have to be exercised in accordance with s 202 of LEPRA. In the circumstances given what occurred after the first request to stop, it was not, then, reasonably practical for them to comply with s 202. The knife was produced almost immediately. It was held above Speelman's head and at police. He must have known they were police. It was not then necessary or practical for them to announce that he was under arrest or what he was under arrest for. The police on scene had more immediate and pressing concerns. To spell it out; they were concerned for their own safety. They were also concerned for the safety of the public. It would appear they were also concerned for Mr Speelman's safety; he having indicated he intended to harm himself.

103. There was a continuing offence being committed. They had to deal with it. The police on scene were acting lawfully. But that does not answer the fundamental question, that is; in using the knife what has been proved beyond reasonable doubt to be Mr Speelman's intention? It seems to me to open to conclude that he intended:

1. (a)    to threaten police, and

2. (b)    to provoke them into shooting him.

It is also possible that he intended to

3. (c)       harm himself with the knife.

However those intentions do not preclude a fourth option,

(d)       preventing his lawful apprehension.

104. Even in a disturbed state it would have been obvious to Mr Speelman that he had produced the knife to police officers and threatened them with it, thus justifying his apprehension. Further, I have to make my decision as to whether the Crown has proved this element of the offence by reviewing the whole of the evidence available to me. That evidence includes my findings: that as a matter of fact that Mr Speelman had shot Ison; that he had run from the scene; that he had gone to his mother's; that he had dumped the car; that he must have changed his clothes; and, that he had, between 1am and 9am, disposed of the gun and other items associated with his earlier crime. He also knew, as he told Mrs Speelman, that he had done something bad. Then at 9am went to a very public area in southern Wollongong, Northcliffe Drive, armed with the knife.

105. While I do not hold his criminal record against him in any way, he was not ignorant of the law. He was not ignorant of police procedure and the consequences of committing serious offences. He well knew that when police saw him they would apprehend him. His actions when they attempted to stop him were deliberate and calculated. He may have had a number of reasons for brandishing the knife but one of them, I find, was to prevent his lawful apprehension. That fact has been proved beyond reasonable doubt. Count 2 has been proved.

106. Mr Speelman, for the reasons outlined so far as count 1 is concerned that on 8 April 2015 at Unanderra in the State of New South Wales you did shoot at Joseph Ison with intent to murder the said Joseph Ison. I find you guilty.

107. So far as count 2 is concerned that on 8 April 2015 at Unanderra, that you did use an offensive weapon with intent to prevent the lawful apprehension of yourself, I find you guilty. You are convicted in accordance with those findings.

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Decision last updated: 29 November 2016