R v McCloskey (No 3) - [2020] NSWSC 914

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v McCloskey (No 3) [2020] NSWSC 914
Hearing dates: 29 June – 3 July 2020; 6 -7 July 2020; 10 & 13 July 2020
Date of orders: 20 July 2020
Decision date: 20 July 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
The accused is not guilty of the murder of John Salafia.
The accused is guilty of being an accessory after the fact to the murder of John Salafia.

Catchwords:
CRIME - murder - trial by judge alone - where accused pleads guilty to being an accessory after the fact to the murder - where deceased was attended upon by a group and shot five times in his doorway - where murder part of an arrangement to confront deceased - where accused admitted to having driven assailants to and from the deceased’s property - where Crown case principally relied on admissions made by the accused to a witness - where witness obtained further admissions after wearing a listening device - where accused claims he was intimidated by witness and made admissions to ward off the witness – where accused had fabricated claims of having been involved in other murders - where tendency evidence admitted to suggest involvement of another person - where sufficient doubt raised as to the truthfulness of the admissions - where accused found not guilty

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) s 23
Criminal Appeal Act 1912 (NSW) s 5F
Criminal Procedure Act 1986 (NSW) s 133
Evidence Act 1995 (NSW) ss 38, 97, 101, 165, 191

Cases Cited:
Hamalainen v R [2019] NSWCCA 276
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v McCloskey (No 2) [2020] NSWSC 786

Category: Principal judgment
Parties: Crown
Robert John Stewart McCloskey (Accused)
Representation:
Counsel:
S Hughes (Crown)
D McMahon (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Kapsis Solicitors (Accused)

File Number(s): 2017/354632

JUDGMENT

Robert John Stewart McCloskey was arraigned before me on 29 June 2020 and entered a plea of not guilty to the following charge:

That he on 23 June 2013 at Kings Point, New South Wales did murder John Salafia (“the deceased”).

His counsel, Mr Daniel McMahon, then informed me that the accused indicated a plea of guilty with respect to being an accessory after the fact. The Crown did not, however, accept that plea in discharge of the indictment.

The trial was conducted without a jury. The accused had made application for a judge-alone trial by a notice of motion dated 15 June 2020. On 22 June 2020 I ordered that the trial should proceed as a judge-alone trial and I provided reasons for that decision on 24 June 2020: R v McCloskey (No 2) [2020] NSWSC 786.
The accused had originally been charged on a joint indictment with Sami Hamalainen. On 15 November 2019 the Court of Criminal Appeal allowed an appeal under s 5F of the Criminal Appeal Act 1912 (NSW),…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McCloskey (No 3)

Details

AGLC: R v McCloskey (No 3) [2020] NSWSC 914
Case: [2020] NSWSC 914
Decision Date: 20 July 2020

CaseChat Overview and Summary

The case of R v McCloskey (No 3) involved a defendant who pleaded guilty to being an accessory after the fact to a murder. The deceased was shot five times in his doorway by a group, as part of an arranged confrontation. The accused admitted to driving the assailants to and from the property but claimed intimidation by a witness who obtained further admissions by wearing a listening device. The Crown's case primarily relied on these admissions, while the accused argued he fabricated claims of involvement in other murders to deflect suspicion. The court had to consider whether the accused's admissions were reliable and voluntary, and if the evidence was sufficient to convict him.

The primary legal issue was whether the admissions made by the accused to the witness were voluntary and reliable, given the accused's claims of intimidation. The court had to determine the admissibility of the tendency evidence suggesting the involvement of another person, and whether sufficient doubt was raised about the truthfulness of the admissions. Additionally, the court needed to assess if the evidence was sufficient to convict the accused of being an accessory after the fact.

The court found that there was sufficient doubt as to the reliability and voluntariness of the accused's admissions due to the alleged intimidation by the witness. The court held that the accused's admissions were not reliable enough to form the basis of a conviction. The tendency evidence was deemed admissible to show the involvement of another person, but it did not sufficiently link the accused to the crime. Consequently, the court found the accused not guilty of being an accessory after the fact to the murder. The court's decision hinged on the lack of reliable and voluntary admissions and the presence of sufficient doubt regarding the accused's involvement.

Orders