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

1. 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.

2. 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.

3. 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), and ordered that the trials of the accused and Mr Hamalainen be conducted separately: Hamalainenv R [2019] NSWCCA 276. The accused’s trial was fixed for hearing first. Mr Hamalainen was, nevertheless, a key player in the evidence given in the present trial of the accused.

Legal principles

4. This is a criminal trial. In a criminal trial the Crown carries the burden of proving the guilt of the accused to the standard of beyond reasonable doubt. The accused has no obligation to prove anything subject to limited exceptions. The burden rests upon the Crown in respect of every element of the offence with which the accused is charged.

5. In a judge-alone trial, s 133 of the Criminal Procedure Act 1986 (NSW) requires me to set out principles of law which I apply, and to make findings of fact on which I rely. It also requires me to take any warning I would be required to give to a jury into account in dealing with the matter.

6. In order to prove the charge of murder, the Crown must prove that there was a voluntary act of the accused that caused the death of the deceased, that the act was carried out with an intention either to kill or to cause really serious bodily harm, or was done with reckless indifference to life. The Crown case was not based on reckless indifference but on an intention at least to inflict really serious injury and, likely, to kill since five bullets were fired at the deceased at close range.

7. The Crown must also prove that the act of the accused was not done in self-defence. While on one account of the events the evidence raises an issue of self-defence, in the rather unusual circumstances of this case, no issue of self-defence arises for consideration. That is, in short, because the accused denies that he was the person who shot the deceased. The Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and is in dispute. The obligation on the Crown is only to prove the elements of the charge beyond reasonable doubt.

8. The Crown case principally relied on admissions made by the accused to a witness named CD. However, the Crown relied on a number of circumstantial matters to show how and why the accused was involved in the killing of the deceased.

9. To the extent that the case is a circumstantial one, I note the following principles. In a circumstantial case, no one fact can prove the guilt of the accused. The Crown first asks me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find based upon the basic facts is that the accused is guilty of the offence charged.

10. The Crown accepts, nevertheless, that unless I am satisfied beyond reasonable doubt that admissions were made by the accused to CD, and that those admissions were true admissions, I cannot find the accused guilty of the murder of the deceased.

11. In reaching my verdict, I must act impartially and dispassionately. I must not let emotion sway my judgment. My task must be undertaken free of prejudice or sympathy in any of its forms.

The killing of the deceased

12. The deceased lived in a house in Kings Point Drive, Kings Point. On Sunday, 23 June 2013 at around 10:30pm, the deceased was at home with his two daughters. Earlier in the evening, the deceased, his partner Sara Woodcock, their two daughters and the deceased’s son Dylan, had been to the cinema in Ulladulla. His partner then went to work at the Mail Sorting Centre. The deceased drove Dylan to his home and returned to Kings Point.

13. A little before 10.30pm at least three, and probably four, persons drove to the deceased’s house in a Subaru station wagon. The accused was the driver. The deceased appears to have opened the front door to his house leaving a wire screen door closed. Five bullets were discharged through the screen door.

14. Ms Woodcock arrived home from work at about 10.30. She found the deceased on the floor of the living room near the front door. Her daughters were in their bedroom. She asked her eldest daughter, Dakota aged 12, what she had heard. Dakota said that she was half asleep but she heard banging on the door, and she heard Johnny say, “What, who is it?” She said she heard the door opened and “thong noises like when you slap your thong straightaway”. She heard Johnny crying, and she thought Johnny and Sara were having a fight because she thought she could hear a girl crying. Dakota said that this occurred about 10 to 15 minutes before Ms Woodcock arrived home.

15. Ms Woodcock rang triple-0 within about one minute. The Ambulance centre received a call at 10.32pm. The ambulance officers arrived on the scene at about 10.36pm which, according to an ambulance officer referred to in the statement of Senior Constable Lisa Glover, was about 10 minutes after the deceased was shot. Despite cardiopulmonary resuscitation being administered for some period of time, the deceased was declared dead at 10:56pm.

16. An autopsy was conducted by the forensic pathologist, Isabella Brouwer, on 25 June 2013. She found that the deceased had suffered three gunshot wounds, one to the left side of the head, one to the left upper anterior chest and one to the right buttock. She determined that the direct cause of death was the gunshot wound to the chest. Two projectiles were recovered from the deceased’s body, one from the left posterior chest wall beside the sixth thoracic vertebrae, and one from underneath the gluteus maximus muscle beside the sciatic nerve. Another bullet entered and exited the deceased’s head causing what is known as a gutter wound to the top of the head.

The witnesses

17. Three witnesses gave evidence from a remote location. Two were former members of the Rebels Outlaw Motorcycle Gang of which the accused and Mr Hamalainen were also members, and one was a friend of the first two and of Mr Hamalainen. Orders were sought and granted providing anonymity to these witnesses because of assistance they had provided to the police and law enforcement authorities. Those witnesses are referred to herein as AB, CD and DE. During the trial it became apparent that the sons of AB and CD were also participants in the events associated with the deceased’s murder. Identifying them was likely to identify their father in each case. Accordingly, those witnesses were also given anonymity and are identified in this judgment as JK and LM.

18. Another person was alleged by both the Crown witnesses and by the accused to be involved in the murder. Indeed, that person is said by the accused to be the murderer. He has been charged with another murder but has not yet been tried. He has been given anonymity for that reason, and will be referred to as QR.

19. The various witnesses frequently referred to other persons by their nicknames or their first names. Except in relation to witnesses who have been given pseudonyms, I shall similarly refer to those people. Mr Hamalainen was known as Sami, the accused was known as Rob or Robbie and the deceased was known as Johnny.

The background to the killing

Evidence of AB

20. A good deal of the background to the killing was provided by witness AB. He first met Sami in the mid 1990s. AB was about 10 years older than Sami. AB had joined the Rebels in 1992 or 1993. Sami joined them in the late 1990s. AB met Johnny in 1991 or 1992. He said that Johnny joined the Rebels around 2000. Before anyone could join the Rebels they had to become a nominee, and they were known as a “nom”. Usually they stayed as a nom for about 12 months before becoming a fully-fledged member.

21. AB also came to know the accused when the accused first became a member of the Rebels. AB could not remember when that was. AB left the Rebels in about 1995 but re-joined in about 2008 or 2009. AB also knew CD who was a member of the Rebels at that time. AB was told in about 2010 in a phone call from Sami that he, AB, had been made President of the Ulladulla chapter of the Rebels. He remained in that position for about four or five years. Despite being the president, AB said that Sami ran the club and made all the decisions to suit himself more or less.

22. AB and Sami appear to have had an uneasy relationship. It was apparent from AB’s own evidence, and from the evidence of other persons including EF, that at various times Sami treated AB very badly including severely assaulting him at times. Nevertheless, AB appears to have complied with the many demands that Sami made upon him, probably out of some fear for what would happen if he did not do so. EF said that AB was a good person, and Sami took advantage of him. EF said that he felt sorry for him.

23. At some point, a man named Steve Balshaw moved to the Ulladulla area. At first it appears that he and Sami were friends. Then at some point Steve Balshaw and Johnny became friends, and that appears to have impacted on Sami’s attitude to Steve Balshaw. According to AB, the friendship between Steve Balshaw and Johnny was “cruelling his [Sami’s] business” which AB said was the drug trade. He said that Sami was dealing in amphetamine and marijuana.

24. At some stage Steve Balshaw joined the Comancheros OMCG and started riding around on his motorcycle wearing Comanchero colours. That seemed to create further problems for Sami because Ulladulla was regarded as a Rebels’ town.

25. AB said that in about June 2013 Sami asked AB to drive him to Sydney to see Rob, have some dinner, spend the night and then go back to Ulladulla the next day.

26. They drove up to Sydney. They pulled into a service station and AB rang the accused to organise to meet with him. The arrangement then changed so that the accused, Sami and AB met at McDonalds near Sydney airport. AB’s son, JK, who was apprenticed to the accused, was with the accused. Sami and Rob spoke for about 10 or 15 minutes while AB spoke with JK. When Sami returned to AB’s car he said they were going back to Ulladulla because “It was called off”. AB said to Sami, “What’s going on here?” and Sami said “Oh, you’ll see” or something to that effect.

27. About a week before the deceased’s death, AB took Sami and a man named Jamie to a place at Bawley Point to look at a Subaru that Sami wanted to buy. Jamie was a mechanic and Sami wanted him to have a look at the car. The owner of the car was a man called Milo.

28. AB and Sami went back the next day. Sami paid a few hundred dollars for the Subaru, and he then asked AB to drive to the house of a friend, Scott King, who had a place in Woodburn Road near Milton. Sami showed AB where to park the car, on what was like a driveway, and he was told to leave the keys on the floor of the car.

29. Within a day or two, Sami came to AB’s house and asked him to go with him to Scott King’s place to move the car. AB said that Sami said nothing about asking anyone else to assist in the moving of the car. This evidence appeared inconsistent with the statement AB gave to the police. Leave was given to the Crown prosecutor to cross-examine AB under s 38 of the Evidence Act 1995 (NSW). It was put to AB that Sami said to him, “Mick and Griffo will be here soon, I have a little job for them”. AB initially agreed with that but then suggested that that was said at a later time after the car was burnt out, perhaps four or five days after Johnny’s murder. AB said that after the murder he showed Mick and Griffo where the car was and Griffo said something like “We have to burn this car out”.

30. After travelling back from where the car was located with Griffo and Mick, AB saw Sami and said to him that Griffo was saying that Sami said the car had to be burnt. The evidence continued in this way:

Q. What did he say?

A. That's what he said, yeah, it has to be burnt out.

Q. What did he say as to why, or anything more about it?

A. Yeah, something about just getting Rob there or something, I don't know, sort of getting Rob to, you know, probably come and sort Johnny out, like more - I just thought, we all sort of thought it was more like punch up sort of thing.

31. AB said the morning following that conversation he spoke again to Sami, and Sami asked him to meet Robbie at the Termeil shop and to take Robbie to where the car was. Sami also asked AB to get a couple of his bags of marijuana which AB knew were buried in a drum in a particular location. AB said the bags were apparently a pound weight and about 30cm square. Sami told AB to hang on to those bags and he, Sami, would sort it.

32. When AB met the accused at the Termeil shop he said to him, “Sami told me to meet you here” to show him the car. AB said that the accused said something like “Shit, why didn’t he turn up?” or “Where’s he?” In any event, they went to Scott King’s place and AB showed the accused the car. AB also told the accused where the car was to be moved to.

33. AB went to the buried drum containing the cannabis, took two pounds of it and put it in the boot of his car. He parked his car back at his place behind the gates. He didn’t see the cannabis after that time. Within less than two days it was gone.

34. AB said that on the day before or the day of the deceased’s murder, Sami asked AB to get some fuel for the Subaru. He said that he got some fuel and either gave it to Griffo or put it in the car.

35. Sami arrived at AB’s place at about 9:30pm on the night that the deceased was killed. Sami suggested they go for a couple of drinks. They went to the Marlin Hotel bottle shop but it was closed. They then drove to the Ex-Servicemen’s Club in Ulladulla. It was also closing. As they were driving out of the Ex-Servicemen’s Club, AB said that an ambulance went flying down the highway. He said that Sami said, “I wonder if that’s for Johnny or something”.

36. Sami also suggested they drive down towards Burrill Lake because he knew someone where they may be able to get a drink. AB said that they got half way through Burrill Lake and Sami said, “It’s too late, they could be in bed” and he then made a U-turn and drove back to Ulladulla. In cross-examination he was taken to his statement to the police where he said that Sami’s comment about the ambulance was only made as they were driving back towards Ulladulla as they approached the Kings Point turn off. AB seemed to accept, in the light of what appeared in his statement, that Sami may have made the comment as they drove back.

37. It was also put to AB that he said nothing about Sami’s comment concerning the ambulance in his recorded interview with the police which preceded his statement to the police. The video of that part of the interview was played to him, and he appeared to give a negative answer by a shrug of his shoulders to the questions about whether anything was said about the ambulance. He denied that he deliberately did not mention it. He said that he did not know why it was mentioned in that interview. He did say that he was very sacred at the time. He agreed that in his statement he had said that it was that comment that first led him to believe that something bad might have happened to the deceased.

38. AB said that Sami then drove the car to his place and gave it to AB saying that he would pick it up tomorrow. He told him to leave the keys in the letterbox.

39. AB later corrected that to say that after the trip to Burrill Lake Sami dropped AB at his house and AB went inside. About half an hour later Sami and his partner were outside in the car. AB could hear them and he went out and asked what was going on. Sami said something about listening on the scanner, and he thought it was the car that he had bought from Milo. Sami insisted that AB go with him to Bawley Point and say to Milo words to the effect that if anyone came asking about the car it was nothing to do with Sami, and he [Milio] sold it to some Lebs or Turks. AB conveyed that message to Milo, and when he returned to the car Sami asked him if he told Milo exactly what Sami had said. AB said that he had.

40. About a week later Sami asked him to go back and see Milo again because he wanted to know if the police had been in touch with Milo. AB said that CD drove him to Bawley Point.

41. After the Subaru had been burnt, Sami told AB to go out and find where the car was. AB thinks he went with Griffo to find it and they found it about 300 metres off Woodburn Road. When AB told Sami where the car was he “fucking hit the roof”. A couple of days later Sami told AB that the car had to be picked up and taken from where it was. AB thinks that CD hired a car trailer from a place in Ulladulla. Then AB went with CD, LM and Sami to get it onto the car trailer to move it. When he and Sami were on their way to CD’s place, Sami said to AB to tell them it was AB’s son’s car or something like that and it was burnt out for fun.

42. They eventually got the car onto the trailer and moved it to Sami’s farm in Yadboro.

43. AB said that before Johnny was killed he, AB, did not at any time believe that he was going to be shot.

31. He also said that CD had told AB that he was socialising with Robbie in 2016. When AB was asked whether he was aware of any conflict between CD and Robbie, he said that he did not know.

Evidence of CD

45. CD had been a member of the Rebels in both Batemans Bay and Ulladulla. CD ultimately became President of the Ulladulla and Nowra Chapter of the Rebels in about 2002/2003. He left the Rebels in about 2008/2009. CD had known Sami since Sami was about five or six years of age. CD became a friend of his when CD was about 23 or 24 years old and Sami was 18 or 19. Both of them became noms of the Batemans Bay Rebels in about 1998.

46. CD also knew the accused when the accused went to school in Ulladulla. At the time CD became a nom in Batemans Bay in 1998 he became closer to the accused. The accused used to come back to the Batemans Bay clubhouse and help CD serve drinks at the bar. They also used to go fishing together. CD also knew the deceased, and had known him since he was aged about five or six. He was known as Johnny. The deceased joined the Rebels in about 2004 or 2005. CD “nom’d him up” in the Ulladulla Nowra chapter. He remained a member for only a couple of years.

47. At some stage, CD had a falling out with the deceased.

48. One of Sami’s children was called Maverick. He suffered from autism. On one occasion about six months before the deceased was killed, CD remembered that the deceased had said words to the effect “Sami’s son Maverick is a little spastic”.

49. CD also knew a person called Steven Balshaw. Balshaw was a nom for the Comancheros. He and the deceased became close. Sami did not like Steve because he was a Comanchero and because the deceased was hanging out with Steve.

50. Sometime in June 2013 before he died, the deceased went with another person to the house of a young man called Luke Sanderson. They assaulted Mr Sanderson. The deceased demanded to know where Mr Sanderson’s drugs were and accused him of having sold acid [LSD] to the deceased’s son Dylan. They attempted to cut off one of Mr Sanderson’s ears but the scissors broke before they could do that. They found some drugs and threw them in the toilet. CD heard about that incident both from Sami and from talk around the town.

51. About a week or so before the deceased’s death, CD was at the Milton Ulladulla Ex-Servicemen’s Club. He saw the deceased with Steve Balshaw and two men in Comancheros shirts. CD rang Sami and told him that there were a couple of Comancheros with the deceased and Steve. He said he did that because “I just always keep their running form, … it’s just like a, I think just a club thing, you know, it’s a Rebel town and that’s how they - everyone wanted it, you know”.

52. Not long before the deceased died, CD drove AB down to Bawley Point because AB told him he was going to buy a car or pay for a car. AB said that the name of the person he was going to see was named Noel.

53. CD first heard about the deceased’s death on the morning of 24 June 2013 when a friend of his rang to tell him. CD called Sami straight after that and told him what he had been told. Sami said that he hadn’t heard anything, he was going to make a couple of phone calls and get back to him.

54. Later, CD went up to AB’s house. Sami was there. CD took him aside and asked him if he had anything to do with what had happened, and Sami said “No, bro”.

55. Sometime after the deceased’s death, CD saw a company called Nicholas Excavation doing some work at a place on the road about two kilometres from CD’s house. He spoke to the man operating the excavator because he wanted to see if he could do some work at CD’s property. CD noticed that there was a burnt out car on an access road near where the excavation was taking place. He asked the excavator how long the burnt out car had been there, and the excavator said that it had been there for probably two or three weeks. The excavator said he was going to ring the council to have it moved because he was making a road through between the two houses where the car had been burnt out.

56. On the same day CD saw Sami and told him about the burnt out car. CD said that Sami “Got a little bit … funny with that”. CD told Sami that the excavator was going to ring the council ranger to get it removed and, after a few seconds, Sami said to him, “Oh shit that’s [AB’s] son’s car. He done an insurance job”.

57. Later that afternoon CD received a phone call from Sami asking him if he would meet him there and give him a hand to move the car. Sami said that AB was going with him to get a trailer and they would ring CD when they were on their way. Subsequently Sami rang him, and CD and his son, LM, went out to meet him. They went to the place where the car was. He saw that AB had a car trailer on the back of his utility. They had some considerable difficulty getting the car onto the trailer but they eventually managed it. The car was then taken to another place and pushed into the bush. After the car was dumped, Sami said to AB, “Go and see that bloke and tell him not to say anything about the car, go and warn him”.

58. The next day CD was at AB’s house in Ulladulla. AB asked CD if he could drive him down to Bawley Point to see the bloke about the car. CD did so. AB told him to park in a certain spot, and then AB walked through the bushes to the man’s house. He returned about 15 or 20 minutes later, and they did not speak about what he had said or done at the house.

59. CD said that the accused left the south coast around 2007. CD did not see him very often in 2013. He knew, however, that Sami had close contact with the accused. CD knew that the accused started a city chapter of the Rebels.

60. CD said that the last time he saw the accused before the deceased’s murder was when CD and Sami went to Sydney and stayed at the accused’s place in Waterloo for a fortnight. He said that that was maybe six months or a year prior to the deceased’s death. CD said that when the accused moved back down to Ulladulla at some time after the deceased’s death he and the accused were very close. However, about six months before the accused was arrested they had a falling out because CD had sex with the accused’s partner or ex-partner.

61. CD said that after the accused moved back to Batemans Bay they hung out nearly every day. Their activities included fishing, and the accused bought CD’s daughter’s fishing boat. They went to dinner sometimes with other people, and sometimes just the two of them. The accused would come and stay with CD and his girlfriend.

62. In August 2016 a friend of CD’s son died in a car accident. He and the accused then went to Nelligan to see the boys’ father and pass on their condolences. After spending a few hours with the boys’ father, they went back to the accused’s house. They both went inside the house and talked for a bit. During the course of conversation, the accused said, “You know I did it”. CD said that he did not know what the accused was talking about, and CD simply said “Yeah”, and CD said “That’s when he started talking to me”. CD said that after he said “Yeah”, the accused told him that it was him and the Afghanistan boys who went around to the deceased’s place and killed him. When asked by the Crown prosecutor to use the actual words that were said, CD said this:

A. Yeah. Well I think at first he just went "bang, bang, bang", then he told me that him and his two Afghanistan boys went to Johnny's place. They had Comanchero shirts on, Robbie had a 38 on him and one of the old blokes had a 22 and he said the two blokes, one of them knocked on the door and Robbie was sort of hiding at the side of the door where he couldn't see him and Johnny got up and said "What the fuck do you want?" And Robbie jumped out from the side of the door there and Johnny said like "Oh, Robbie", like surprised about Robbie told me, and then Robbie shot him once in the chest and then I think he said he fired another shot and it missed or something, and then Johnny was sort of, you know, screaming and Robbie said the bloke [scil. blood] was coming out of his heart like a tap and then he opened up the screen door and leaned over him and put one in his head and he was just there shaking.

Q. When you say "he was there shaking", who are you talking about now?

A. Johnny was on the ground shaking.

Q. That's what Robbie told you?

A. Yeah.

63. CD then said to the accused, “Why the fuck did you do that for?” and CD said he thinks that the accused said that Sami told him that the deceased was going around saying he was going to take over the town and “try to find out shit about him so Robbie more or less said he done it as a favour for him”.

64. In a subsequent conversation, the accused said to CD:

A. Well, Robbie said they only got a couple pound of pot out of it which he was pissed off because Sami was supposed to - Sami had a gun and put them in bleach and it fucked the guns up somehow so they cost ten grand and the Afghanistan boys wanted the money for the guns and Robbie said he's got to try to - he had to sort it out because they were going to come down and sort Sami out.

65. CD said that the accused borrowed a couple of thousand dollars from him to give them some money just to shut them up and to get them off his back a little bit. The accused said he wanted to give it to the Afghanistan blokes just to stop them from whinging. CD said that he asked his brother to drop the money off at the Sydney Fish Market. He said that the accused was a bit upset with Sami over those matters.

66. CD also said that the accused was thinking that “This was all over like a territorial thing with the Comancheros, Rebels and that”, but he said:

A. Well Robbie was upset because he knew that - it wasn't about anything to do with the clubs, it was about to do with Sami losing drugs with that Luke Sanderson because Johnny went and bashed him and took the drugs off him and flushed them down the toilet, as I know, and they were Sami's drugs so Robbie didn't know that at the time.

67. Shortly after the accused made these statements, CD went to the police and met with Detective Glenzendorf on 21 December 2016. The police subsequently fitted a listening device onto CD. That listening device was activated on a driving trip where CD drove the accused from Ulladulla to Braidwood first to drop off something for his ex-partner, and then to Canberra to see a mutual friend of theirs .

68. The relevant part of the recorded conversation is as follows:

CD - Well, you know what pisses me off?

RM - What?

CD - Not with that.

RM - Hmmm.

CD - With the shit fucking down home and then they fucking stick their finger up your fucking arse.

RM - Hmmm.

CD - Like, you know. It fucking pisses me off mate. I couldn’t believe that when you told me that, the fucking things.

RM - Hmmm.

CD - They fucked them up, they should’ve fucking gave ya the money, no ifs, no buts.

RM - Poor cunt, the poor cunt sitting in gaol for 40, fucking probably 40, 50 years...

CD - That’s right.

RM - You would think they would go give him ten grand now.

03:14:48

CD - Here is ten grand for your fucking solicitors fees.

RM - You can’t do that, you wanna keep them quiet

CD -Yeah.

RM - I had to stop him from doing that to Sami.

CD - Hey, he is lucky he fucking didn’t come down.

03:14:55

RM - I am telling ya, he was that close, he doesn’t know mate!

CD - Did you sus him?

RM - He was howling man! He just goes, “What the fuck! You get me, ya know, to come down and I fucking risk, bring them down, bring the guns.” He said, “You never told us really what you were doing. You just said bring them and probably just gonna bat the cunt and you fucking wack the cunt in front of us and we weren’t even prepared.” And then he said, “Fucking, we lose both our fucking guns and that cunt, what, nothing!”

CD -   Oh so he, so they didn’t know you were coming down to shoot Johnny? RM - ...I’m fucking...

CD - Ah, so they just thought you were coming down to bash some cunt.

RM - And I said just bring them in case.

CD - Oh, okay.

RM - And then I just walked up. Boom! Boom! Boom!

CD - Look at the cunt go up and down here, the bastard.

RM - ...that bro   

CD - Ah well that’s good, that’s working.

RM - You know what I mean, and on again..

CD - It’s going down now.

RM - Um, fucking, yeah but I told him, he was howling on it. And he's like, ya know, “not only should he pay for our guns, he should be fucking paying us, ya know, something!”

69. The reference to the man “howling” is a reference to one of the Afghani men, and probably to QR.

70. On a subsequent occasion in June 2017, CD was fitted with a listening device when he went to the accused’s place in Batemans Bay. Further discussion took place in relation to the deceased’s murder in these terms:

RM - You know what, when he’s sitting inside and there’s people pointing the finger at him. You know what; it just needs one person to write a statement against me, you or Sami and we’re gone. No cunt is going to believe us.

CD - No chance. I, I seen something funny out my place this morning.

RM - What?

CD - Urn, there was a urn, a forensic car up in that track where, where the car was put.

RM - Hm. Ha.

CD - I don’t know whether, I was gonna go, I know the owner up there, like, not too good but I know them to say hello and that. I was just gonna up and say. Oh, what happened? You know, fucking, everything alright, I seen?

RM - Forensics? There could’ve been an acco out there.

CD - Oh, could’ve been but I thought, Forensic car?

RM - Hmm.

CD - That’s what I mean mate, I don’t trust half, half of Sami’s fucking mates. RM - Nah, nah.

CD - That’s what worries me. Cause I helped move that fucking car.

RM - Hm.

CD - And then he goes.... Sami get fucking on this, talks shit.

RM - You know what will happen? If it comes it will hahahha   

CD - We’ll be all sitting in jail all together.

RM - Haha.

CD - I just don’t fucking trust him and his little mates. I’ve always said it to him. That Gump, he’s another dumb cunt. Gump...

RM - Who?

CD - Gump. He put the pistols in the bleach....

RM - Yeah.

CD - I wouldn’t let him look after my fucking pet dog.

RM - So, you gonna go Eden?

CD - Ah, yeah, well they’ll never find the cunt, mate.

RM -   

CD -   

RM - Where you going, home after this?

CD - Yeah.

RM - You wanna get something to eat maybe?

CD - Well, what’s the time?

RM - Nah, it’s too early.

CD - 2 0’clock?

RM - Nah

71. CD said that at some time in 2017 he was at a friend’s shop in Bateman’s Bay. The friend was a man called Roach. The accused came to the shop, following a phone call from CD. The accused said that he’d heard they were going to arrest Sami over Johnny’s murder. He said the accused told him to go and see Sami and to tell him to shut his mouth, to tell him that the accused heard they were going to make an arrest, and it might be a good idea “to fuck off to Finland”. CD said that he was pretty sure that he would have come back on the next day or so and told the accused what Sami said.

72. CD said that he and Robbie had talked on more than one occasion about the death of Mark Easter. He said Robbie told him how Mark Easter died. The accused said he was involved, and he was there when Mark Easter was shot. He said that he told Detective Glenzendorf what Robbie told him in that regard. That became part of Confidential Exhibit B.

Evidence of EF

73. EF was a good friend of Sami’s. He said that not long before Johnny died, relations between Sami and Johnny were not good. They were always fighting. He said Sami didn’t like the fact that Johnny was hanging around with Steve Balshaw. Sami told him that Johnny was apparently going to take over the town and kick out the Rebels because Steve had something to do with the Comancheros.

74. EF gave evidence of being shown a burnt out car in the bush by Sami. EF later saw the same car at Ulladulla police station. He gave evidence that Sami sold marijuana.

75. EF also gave evidence that not long after the deceased’s death he went to some friends’ place, and Sami was there. Sami pointed out to him the laundry sink where the guns used in the murder were cleaned, and referred disparagingly to one of the occupants of the flat who was responsible for that damage to the guns.

Evidence of Sara Woodcock

76. Sara Woodcock was the deceased’s partner. She gave evidence about going to the cinema with the deceased and their children the night of the deceased’s killing. She gave evidence of finding the deceased dead when she arrived home some time after the deceased, and what her eldest daughter told her she heard. She said the deceased did not have any firearms, and that she had only seen him use a firearm on two occasions, once when pig hunting and once when clay shooting.

Evidence of Gregory Matthews

77. Gregory Matthews lived four doors up the road from the deceased. At about 10.10pm on 23 June, Mr Matthews was in the living room of his house talking to his partner on the telephone. The living room faces out onto Kings Point Drive. He heard three loud bangs that sounded like gunshots which came from down the road towards the lake. That was the direction of the deceased’s house. Mr Matthews moved to the front window and opened the curtains. He saw three men running up the road from the direction of the deceased’s house. They looked like they were running as fast as they could go. The closest of those males was between about seven and ten metres from where Mr Matthews was standing, according to counsel’s estimates of a distance indicated by Mr Matthews within the courtroom whilst he was still in the witness box. The men were running side by side.

78. The weather was wet, dark and cloudy. There is a street light just past his house in the direction the men were running. There is another street light on the lower side of his house. There is also a phone box out of the front of his house which throws some light. The man closest to where Mr Matthews was standing was medium height, probably a bit taller than 5’10”. He was clean shaven, with short hair and white skinned.

79. Mr Matthews gave a statement to the police on 24 June. In that statement he said that the three men looked to be aged about 18 to 25 years and of medium build. Two of them were about 5’10” or a little taller, and the one in the middle was taller by a couple of inches. The man closest to Mr Matthews was wearing a long-sleeve black hoodie or long-sleeve T-shirt. It had a pattern on it similar to a tribal sleeve tattoo pattern, and the pattern was in silver or white because it reflected the light and stood out.

Evidence of Lucas van der Welt

80. Mr Van der Welt was a ballistics expert attached to the Forensics Services Group, Sydney. He attended the scene on 24 June. He identified a number of fired bullets and damaged lead fragments. He concluded that there were five shots fired, and all were fired from outside the house through the front screen door which had a diamond shaped metal grill and shade screen. Three shots went through cleanly and two hit the grill itself. Mr Van der Welt could not say if all the bullets came from the same weapon, but they came from either a .38 or a .357 revolver.

Evidence of Matthew Gibb

81. Detective Senior Constable Gibb was a crime scene investigator who attended the crime scene at 6.15am on 24 June. He took a number of photographs which became Exhibit H. He said that adjacent to a non-working sensor light on the front verandah of the house there was found a drop of blood on a tiny piece of skin blended in which was a hair. That piece of tissue was found to contain the deceased’s DNA.

Evidence of Detective Senior Counsel Kieran Glenzendorf

82. Senior Constable Glenzendorf was the officer in charge of the investigation. He gave unchallenged evidence about the post mortem, and about the DNA and fingerprinting testing. Only the deceased’s DNA was found at the scene, and no fingerprint evidence of any person of interest was found. He gave evidence about fitting CD with the listening devices and providing him with the Daily Telegraph, seemingly in relation to an article about Mark Easter’s death. He gave evidence that AB showed him the location of the burnt out Subaru. Through him the Crown tendered photos of the 2013 Rebels Perth Run showing, inter alia, the accused and QR. This was a bike trip from Sydney to Perth organised by the club with a number of different chapters attending.

The accused

83. The accused gave evidence. An accused person may always, by giving evidence or by calling other evidence, make a response to the case presented by the Crown by way of an explanation for the whole or parts of the Crown’s case but there is no obligation to do so. The Crown bears the onus at all times of satisfying the Court beyond reasonable doubt that the accused is guilty of the offence charged. The accused bears no onus. The accused is presumed to be innocent until I have been satisfied beyond reasonable doubt by the Crown that the accused is guilty.

84. Although the accused may give and call evidence in relation to the whole or any part of the Crown’s case by way of explanation for it or by way of additional matters which the accused may wish to raise, the accused may equally elect to give no such explanation, nor call any evidence in that regard. The accused is entitled to say nothing and make the Crown prove his guilt.

85. In circumstances where, as here, the accused gave evidence, I must treat the accused's evidence in the same way as I treat all the other witnesses. When I consider the accused’s evidence I keep in mind at all times that the accused does not have to prove anything at all. The Crown must prove its case beyond reasonable doubt.

86. Even if I disbelieve the accused's evidence, I must still consider the whole of the Crown's evidence to see if I am satisfied beyond reasonable doubt that the Crown has proved the accused's guilt. If, on the other hand, I believe the accused's evidence, then I must acquit the accused. That means in the present case that, if I believe the accused’s evidence that the admissions he made were not true, I must acquit the accused.

87. The accused gave evidence that he had known the deceased since he played football with him in the under eights football for Milton Ulladulla Bulldogs. He said later on in life they hung out. They used to go pig hunting. The deceased used to come to the shop the accused’s parents ran at Termeil. They went to the same high school. The accused said that they socialised and “shared women”.

88. The accused had known AB for over 30 years and had known Sami for over 30 years. The accused became a member of the Rebels Batemans Bay chapter in about 2002. He left the Rebels at the end of 2015.

89. The accused said he was arrested in November 2017 and charged with the deceased’s murder. On 26 November 2018 he provided a written statement to the police about the events leading up to the deceased’s death.

90. The accused gave evidence about the meeting at the McDonalds at Mascot with AB and Sami. He said the meeting was not pre-arranged. Rather, he received a call from AB saying that he had been to Picton and was in the Sydney area. He was asking to meet up to talk about JK and the problems the accused said he was having with JK’s work. AB said that Sami was with him.

91. The accused came to the meeting with JK. The accused said that JK, who was an apprentice for him, had been failing to turn up for work on a number of occasions, and the accused found out that AB had “nom’d” JK into the Ulladulla Chapter.

92. The accused said that he also spoke to Sami on that occasion and told him that Mark Easter and some boys would be going down to sort out the Johnny issue, and give him a good drumming and find out why the addresses were given up. That was a reference to the fact that the accused had ascertained that his address, Sami’s address and AB’s address had been provided to the Commancheros and there was a concern that they could get into the wrong hands. The accused explained, when asked in cross-examination, that the term “drum him” meant “speak firm with him and ask him the reasons why he’d given the addresses out”. The accused said that Mark Easter came up with the solution for some of the boys to go down to the deceased’s house wearing Comanchero attire and pretend to be high ranking members of the Comancheros to defuse the situation.

93. The accused said he went down to Batemans Bay from Sydney, where he was living and working at the time, on 22 June and he met up with QR, Moey and AJ (two other persons associated with the Rebels) about 5 o’clock on 23 June. He said AB was to pick them up at 7 o’clock at Lyons Road where they would then go through the bush to pick up a car. He said AB turned up late at about 8 o’clock. He said the boys put on Comanchero gear, grabbed a bat and some knuckle dusters and got into AB’s car, which was a goldie coloured Toyota land cruiser like a station wagon. He said that AB drove them to a place he described as a logging dump off Three Falls Road where the Subaru was parked.

94. The accused, QR, Moey and AJ got into the Subaru. The accused drove it to the deceased’s house. The accused parked out of the front of the bus stop, a little up the road from the deceased’s house. The three boys got out carrying the knuckle dusters and went to the deceased’s house. After about five minutes he heard a gunshot and then another four gunshots. The accused remembered hearing that the first gunshot was a much quieter sound than the four subsequent gunshots. A few minutes later the boys came running and jumped into the back of the car. They were shouting and QR was saying “You know it was a set up, he had a gun”. The accused asked what happened, and QR said “I shot him through the fly screen. He come to the – when he opened the door he had a gun, he shot first. I shot him. I shot him in the chest, fuck he was a tough cunt. He was screaming and yelling. He was screaming and yelling. "And then I shot him in the head and he stopped moving".

95. The accused said that QR also said “You know, Rob I am always fucking strapped.” The accused responded, “No, I don’t know that shit. I don’t know you’re always fucking strapped”. QR said, “Look, I don’t trust any cunt and I had me 38, and AJ had a 22”. A little later on QR said, “If anything comes of this, youse can take the fall for it and youse cunts will be paying for the fucking gun.”

96. The accused then drove the Subaru back to the place where they had picked it up. He then drove the others in AB’s Land Cruiser to where they were staying, and drove back to his place at Bateman’s Bay.

97. The accused was asked about his return to Batemans Bay in about 2016. He said there were a number of reasons for the move. There had been four murders in the Rebels, including Mark Easter, and all of those killed were very close to the accused. He said that he started using a lot of drugs after Mark Easter’s death and he became paranoid. He said he broke up with his wife by walking out on her while she was four months’ pregnant with his daughter Evie.

98. He said that he struck up a bit of a relationship with CD. They went to the same primary school together and he had known CD before he went to Sydney. He said after CD got kicked out of the Rebels the accused did not have much to do with him. He then bumped into him in Batemans Bay and told CD that he was back into fishing and CD offered to assist him including selling his daughter’s boat to him.

99. The accused told of seeing a group of three Islanders in Batemans Bay. The precise time was not stated but it appears to be in late 2016, perhaps October or November. He said they had been at Mark Easter’s funeral but then they had left the Rebels. He saw them two days in a row. He said that some people said the Islanders looked like they were “scoping” the accused out. The accused walked into a café and hit one of them. They then seriously assaulted him.

100. He said at this time that he was on a mental health plan and was on prescription drugs. He then started taking LSD, ice and cocaine. He said he was still working but was mentally a mess.

101. He said at this time CD started asking him all these questions about Mark Easter and about Johnny and “stuff about a lot of other things”. He said he got quite paranoid and quite fearful. He said that CD kept saying to him, “You gotta watch out, you’re going to be next. Those blokes down – you had a fight with them but they were here to kill you. Do you know what I mean?"

102. He also said that CD had a problem with the accused’s aunt and uncle about work that the accused’s uncle had done on CD’s boat. He said that CD made disparaging and threatening remarks about the accused’s aunty and uncle to the accused.

103. The accused said that CD just kept asking him questions about Mark and about Johnny, “And then I just told [CD] a heap of nonsense. I just wanted him to back off. I wanted him to leave me alone. I moved out of Sydney to get away from that shit and I was just very fearful.” He said he was fearful of what CD’s agenda was. He seemed to know a lot about Mark Easter and about other things. The accused did not know whether CD was possibly set up by QR or someone else. He claimed that CD was a very close associate to QR. He said that he was very fearful of QR after the shooting of the deceased.

104. The accused said that he did say something to CD about his, the accused’s, involvement in the death of John Salafia. He denied it was after travelling to Nelligan. He said it was later in the year, close to December, or late October/November after he was in the fight with the Islanders. He said he did not recall exactly what he said to him. But obviously, he said, he made admissions that he had shot Johnny.

105. He was asked if it was his voice on the tape of the listening device recording of 21 December 2016. He said that it was but “you can hear that I'm very intoxicated with drugs”.

106. Another tape was played to him where he said that he had shot a person “in the guts twice” in the company of another person. He denied that that incident ever happened, but said that he had told CD it did because he “was just trying to shut him down and back him off … Because he was just forever asking me questions. I was trying to put the fear of God in the bloke, you know, like to unearth his hidden agendas or to protect myself, protect my family.”

107. The accused said that CD had been acting suspiciously. He had asked him to go to remote locations to have talks and was always on the phone asking him about many things. He was asked by his counsel what he meant by his reference to CD having an agenda. He said:

Like, why he was asking all those questions, you know? Like what was he trying to, like why was he trying to intimidate me? He didn't ever threaten me, but it was the way he talked to me, the way he acted around me, you know.

108. He was asked if he spoke to CD about the incident with the Islanders, and the accused said:

Yeah, we had talked about it and I'd explained to him, you know, how fearful, you know, I was; why they were hanging around and looked like they were concealing weapons. And he just kept bringing it up to me all the time over and over again: "You're going to be next." Around the same time then Ricky Ciano was murdered. So that goes under five Rebels murdered like by five Rebels, you know.

109. The accused said that he went on the 2013 Rebels Perth Run which took place after the deceased’s death. He said he bumped into Sami who said “What happened to Johnny?” and the accused told him to speak to QR about it. He said QR told Sami that the deceased came to the door and shot at them first and that QR then shot him. He said Sami was pretty disgusted and he had words with QR.

110. The accused at one stage told CD that he was present when Mark Easter was shot and killed but that was in fact not the truth. When asked why he claimed to CD that he was there, the accused said:

A. Because he was asking so many questions about Mark Easter and he seemed to know stuff about it so I said that to him to see if I could - if he'd open up and either say, "Hey, you weren't there", you know what I mean, like, just he was leading me with questions, I was leading him with questions. It's just, you know, just - that was the method.

Q. When you say method, method to do what, what were you trying to achieve?

A. Unearth his hidden agenda like why he was asking these questions and insinuating things.

111. The accused accepted that CD never directly threatened him. His explanation for maintaining the relationship with CD was the notion that one keeps one’s friends close but one’s enemies closer.

112. He said that at the time he made the admissions in December 2016 when CD was wearing a listening device, he had consumed a lot of drugs including methylamphetamine on the previous night and either speed or cocaine when, on that trip to Canberra, he visited the house of his friend Michael Clarke. He said that he realised he was on drugs at that time when he listened to the recording and heard his voice. He could tell from the tone and rate at which he was speaking that he was affected by drugs. He denied, however, that he referred to that fact for the purpose of explaining the content of the conversation with CD. In other words, he was not claiming to have said what he did because he was affected by drugs.

113. It was put to him that when he was recorded by the listening device on 12 June 2017 he was laughing when speaking with CD and was not intimidated by him. His evidence was that he was actually snorting drugs whilst being recorded and he claimed that that could clearly be heard on the video. A copy of the transcript of that conversation was tendered by him which contained a handwritten note by him that he said was made on the weekend of 4 July 2020. The note said that he was snorting drugs at the time, and he said he made the note when he first heard the recording on that day.

114. The accused said that he did not go to the door of the deceased’s house with the others because the deceased would have recognised him. The idea was that the three persons who went to the house, who were unknown to the deceased, would appear to be members of the Comancheros because of the clothes they were wearing.

Tendency evidence

115. The accused gave notice that he intended to adduce tendency evidence and rely on tendency reasoning pursuant to s 97(1) of the Evidence Act. The notice said that the tendencies advanced related to the person identified as QR, and were these:

(a)   QR has a tendency to possess and carry illegal firearms and ammunition, in particular pistols (including .38 revolvers);

(b)   QR has a tendency to engage in extreme violence including murder by the use of firearms, in particular pistols;

(c)   QR has a tendency to do so at close range and by discharging the firearm multiple times;

(d)   QR has a tendency to execute people by shooting them to the head including those who are prone or injured.

116. The tendencies advanced were said to tend to support the version of events advanced by the accused in his statement of 26 November 2018, namely, that they:

(a)   make it more likely that QR would have been in possession of the firearm that killed the deceased;

(b)   make it more likely that QR shot and killed the deceased as the accused alleges.

117. It is not necessary to set out the agreed facts for the purpose of the tendency evidence. Some of the material in the agreed facts contains confidential information involving the killing of a number of other persons in respect of which QR is said to have been responsible. The agreed facts are contained in confidential exhibit 4. It is sufficient to note that those facts show that QR presided over a criminal group which included firearms trafficking. Between 2013 and 2015 some 50 to 100 firearms had been sourced for QR including .38 revolvers. Further, in a van in which QR travelled to kill Ricky Ciano, there were a number of firearms including several .38 special revolvers which were to be re-barrelled.

118. The Crown did not oppose the tendency evidence being led. During the course of the hearing I indicated to the parties that I considered that the evidence would, either by itself or having regard to the other evidence adduced or to be adduced by the accused, have significant probative value.

119. The accused says that the evidence reveals that QR has a tendency to act in the ways set out in the tendency notice, making it more likely that he committed the offence charged in the indictment. The evidence suggesting that QR had that tendency may only be used by me in that way if I make two findings. The first finding is that one or more of those acts occurred. If I do find that one or more of those acts occurred, I must go on to consider whether, from the act or acts that I have found occurred, I can conclude that QR had the tendency to possess and carry a .38 revolver, engage in extreme violence including murder by the use of a firearm, to do so at close range by discharging the firearm multiple times, and execute people by shooting them to the head including those who are prone or injured.

120. The facts for the purposes of tendency were agreed and I do not consider it appropriate to give leave under s 191 of the Evidence Act to contradict or qualify those agreed facts. Based on acceptance of those facts I conclude that QR has a tendency to possess and carry illegal firearms including a .38 revolver, that he has a tendency to engage in extreme violence, to do so at close range and by discharging the firearm multiple times, and has a tendency to execute people by shooting them to the head including when they are prone or injured.

121. I consider that the probative value is significant because it is important or of consequence in considering whether or not the accused shot the deceased: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at 46. I note that s 101 of the Evidence Act has no application where the tendency evidence is not tendency evidence about the accused.

Submissions

Crown submissions

122. The Crown submitted that although at times unimpressive, CD gave his evidence in a matter of fact manner. The Crown submitted that although in some respects AB was unimpressive, his evidence certainly did not seem rehearsed. The Crown said that, whilst both witnesses were cross-examined in relation to their statements, it would be expected that any attempt to falsify or manufacture evidence would have seemed more practised or unbelievable, which it did not.

123. The Crown submitted that there was much evidence that Mr Hamalainen was a controlling figure in the Ulladulla chapter of the Rebels. AB was simply a figurehead at that time. Mr Hamalainen had expressed and voiced his concern to a number of people about the relationship between Steve Balshaw and the deceased. There was concern that the deceased was taking over the local drug trade and they were associating with the Comancheros. Mr Hamalainen had aired concerns about the bashing of Luke Sanderson by the deceased and another man who was submitted to be Steve Balshaw. Mr Hamalainen sourced the Subaru with AB’s help.

124. The Crown drew attention to the evidence of Senior Constable Glover who reported one of the deceased’s daughters as having heard the deceased say, after the knock on the door, “What the fuck do you want?” The Crown submitted that those words were what the accused attributed to the deceased when he made the admission to CD. The Crown submitted that, if the deceased recognised one of the men at the front door, it made more sense that he would have said “What the fuck do you want?” Of those people who were at the front of the house, he would only have known the accused.

125. The Crown submitted that the accused accepted having made the first admission to CD, although he disputed the timing of when that admission was made. The Crown said that, according to CD, the accused said he first shot the deceased in the chest and then fired another shot which missed. That was consistent with the post mortem. The accused then said to CD that Johnny was screaming and the blood was coming out of his heart like a tap, and then the accused opened the screen door, leaned over and put one in his head. The Crown pointed to the fact that the DNA analysis of the human tissue, being skin and a hair of the deceased near the sensor light on the front door, was entirely consistent with the door having been opened and one of the shots fired. That was because there was no blood found on the inside of the screen door. The Crown said the presence of human tissue near the light was inconsistent with what appeared in the accused’s statement that QR claimed to have fired the shots including the shot into the deceased’s head, through the screen door.

122. The Crown submitted that the accused’s account of the killing as being relayed to him by QR had a number of problems. The only person the deceased was expecting home was his partner Sarah. He had absolutely no reason to be near the front door with a firearm to fire at QR and the two others who knocked on the door. The Crown submitted that there was no evidence the deceased had a firearm.

123. Further, the Crown submitted that even if he was armed, there would have been no reason why he felt the need to come out and start firing upon people wearing Comanchero colours, given he was himself a Comanchero. Further, he apparently missed all of them despite firing at close range.

124. The Crown submitted that, on the accused’s account, there was no reason for the accused to be at the premises because the others could have Googled the deceased’s address. The accused did not know the deceased’s address before he was told that night.

125. The Crown submitted that I would reject the accused’s evidence about the meeting at McDonalds near the airport being principally about JK, and that the accused received the two pounds of pot as some sort of compensation from AB for JK’s poor work performance. If the issue only concerned JK’s work issues, that could have been dealt with on the telephone.

126. The Crown submitted that I would reject the evidence of the accused that he was intimidated by CD, and it was for that reason that he made the admissions. The Crown said that the accused had asked CD to drive him on that trip to Canberra. Further, in one of the tapes, the accused can be heard, after discussing matters connected with the admissions, suggesting the two of them go for a meal.

127. The Crown submitted that I would reject the accused’s account of snorting cocaine during the conversation with CD that was recorded on the second listening device. The Crown submitted that although the accused had heard the recording in Court when it was played, it was never put to CD that the accused had snorted cocaine in front of him on that occasion.

128. The Crown referred to the accused’s evidence where he said the first of the five shots fired was a much quieter one. The Crown pointed to the fact that nothing about that was said in the accused’s statement made to the police. The Crown submitted that the accused tailored his evidence in that way to give credence to the account that the first shot was fired by someone other than the three he claimed to have driven to the deceased’s house.

129. The Crown submitted that what the accused said about the conversation captured on the listening devices was simply incapable of belief. The accused had said he was simply talking nonsense and he did not understand what CD was saying to him. The Crown submitted that the accused knew exactly what CD was talking about and he was not intimidated by him. The Crown submitted that it defied common sense that he would continue to associate with him if he was intimidated.

130. The Crown pointed to the photographs of the accused with various other persons including QR at the Rebels 2013 Perth Run. Although he claimed to be terrified of QR, he was in his company and seemed to having a perfectly good time. He made no attempt to contact the then National President, Alex Vella, to get rid of QR because of the danger that he posed.

131. The Crown submitted that when one takes account of what the elder daughter of the deceased reported, there was no suggestion of an argument after the knocking on the door followed later by gunfire. Rather, the whole thing happened very quickly.

132. The Crown submitted that the accused’s role was a central one. It was he who came down at the behest of Mr Hamalainen to sort Johnny out, and that was exactly what the accused did. The Crown submitted that I would find that he went up to the deceased’s house and shot the deceased through the door.

133. The Crown relied upon the following matters as circumstantial evidence, said to make it more likely that the admissions made by the accused were true admissions:

1. The evidence of the blood and skin on the verandah in combination with what the accused said to CD when he first made an admission to him, namely, that he opened the door and put a bullet in the deceased’s head.

2. Mr Hamalainen became aware that the deceased had been associating with Steve Balshaw. Mr Balshaw had not only joined the Comancheros but Mr Hamalainen said that Mr Balshaw and the deceased were moving in on his patch in relation to drug supply.

3. The accused’s connection with Mr Hamalainen.

4. The meeting at McDonalds with Mr Hamalainen.

5. The accused’s involvement with the movements of the Subaru.

Accused’s submissions

138. The accused submitted that there must be a reasonable doubt about the truth of the admissions he made to CD. That is particularly because of the other claims made by the accused, that this murder was his fifth murder, that he had shot a man twice in the stomach in Surry Hills, and that he had been present and/or involved in the killing of Mark Easter. The accused submitted that these matters tend to support his assertion that the admissions about the killing of the deceased were made, not because they were true, but to put the accused in an advantageous position with regard to CD.

139. The accused submitted further that it is also significant that the admissions were only made to CD and no other person. Further, the accused submitted that there is sufficient evidence supporting the notion that CD was asking a lot of questions about the killing of the deceased and, for that matter, the killing of Mark Easter. It is reasonable to conclude, the accused submitted, that he was concerned and somewhat intimidated by CD. Further, the accused submitted, his state of mind changed significantly after the altercation with the Islanders in Batemans Bay, and the admissions were only made to CD after that time.

140. The accused submitted that the forensic evidence did not support the Crown’s submission that the final shot was carried out after the screen door was opened, resulting in the human tissue and hair found near the sensor light on the verandah of the property. The accused submitted that the forensic evidence pointed strongly against that possibility because the ballistics expert concluded that there were five shots and that all of them had been fired from the outside through the screen door. The accused submitted that there was no expert evidence about blood spatter.

141. The accused submitted that the description given by Mr Matthews of the three men who ran past his house after the gunshots did not fit a description of the accused at the time. The age estimate given by Mr Matthews, the height and the build of the men all pointed to those men being other than the accused, and being the three who the accused said went to the deceased’s house.

142. The accused submitted that the Court would have doubts about the reliability or even the honesty of the evidence given by AB and CD, both of whom were criminally concerned with the events in question, and both of whom endeavoured to distance themselves from those events.

143. The accused submitted that there was little evidence to support the Crown’s case that the shooting had been organised by Mr Hamalainen either because he was concerned about the deceased trespassing on his drug patch, or about the deceased having mocked and insulted his autistic child.

144. The accused submitted that if it was the accused who had shot the deceased, it was difficult to understand the evidence about QR being upset about the damage to the guns having been left in the bleach too long. The accused submitted further, that the Crown had not proved its case beyond reasonable doubt because the Crown did not call QR or any of the other persons said to be involved in the incident.

145. The accused submitted that the tendency evidence demonstrates that QR had a clear propensity for the type of killing that took place at the deceased’s house. The accused submitted that it could not be ruled out that the deceased was armed in some way, and drew attention to the evidence of the ambulance officer that there may have been the mention of a knife, the evidence of Ms Woodcock that the police were not to go into the garage, that there was a ten minute period after Ms Woodcock arrived home until the ambulance officer arrived, and to her statement that the killers were lucky they got a cheap shot on the deceased “or they’d be laying here not him”. In any event, the accused submitted that it is not necessary to resolve that matter because what the accused knows of what occurred was derived from what he was told by QR after the event.

146. The accused pointed to the fact that he was prepared to make a detailed statement to the police, which he was not obliged to do, and also to give evidence and subject himself to cross-examination.

147. In all of those circumstances, the accused submitted that the Court would have a reasonable doubt that he was the shooter.

Determination

148. I should first say something about the evidence of the various witnesses. When I consider the evidence given by the witnesses I take into account not only the evidence they gave but how they gave their evidence. I observe their body language. I consider whether they may have been nervous for being in unfamiliar and very formal surroundings. I first consider whether they are truthful witnesses and, if they are, whether they are reliable. I take into account that the events in question took place up to seven years ago. I have regard to consistencies and inconsistencies in the evidence they gave in the witness box, and to whether their evidence was consistent with out of court statements or other objective material.

149. Both AB and CD are witnesses who might reasonably be supposed to have been criminally concerned in the events giving rise to the present trial. Both of them were involved in matters relating to the Subaru before the killing and after the killing, including endeavouring to conceal its existence. In addition, CD received the following benefits by virtue of the assistance he provided to police in this matter:

(1)   He received $2,800 in source sustenance from January to August 2017 for food, fuel and travel whilst participating in covert police operations;

(2) On 13 November 2018 he was sentenced in Goulburn Local Court for domestic violence offences arising from five incidents in July of 2018. An affidavit of assistance pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was provided on sentence and, pursuant to that section, CD received a 40% discount on the following sentences with a further 10% being attributed to a plea of guilty:

Charge	Sentence	Discount
1. Contravene Prohibition/restriction in AVO (Domestic)	Fine of $600	40% - assistance 10% - plea Fine was reduced from $1,200 to $600.
2. Contravene Prohibition/restriction in AVO (Domestic)	Fine of $600	40% - assistance 10% - plea Fine was reduced from $1,200 to $600.
3. Stalk/intimidate intend fear physical etc harm (Domestic) – T2	Fine of $600	40% - assistance 10% - plea Fine was reduced from $1,200 to $600.
4. Contravene Prohibition/restriction in AVO (Domestic)	Imprisonment: 3 months (11/07/2018 – 10/10/2018)	40% - assistance 10% - plea Imprisonment period reduced from 6 months to 3 months
5. Stalk/intimidate intend fear physical etc harm (Domestic) – T2	Imprisonment: Time served 4 months and 3 days (11/07/2018 – 13/11/2018)	40% - assistance No discount for plea (matter proceeded to hearing)
6. Contravene Prohibition/restriction in AVO (Domestic)	Imprisonment: Time served 4 months and 2 days (11/07/2018 – 12/11/2018)	40% - assistance No discount for plea (matter proceeded to hearing)
7. Contravene Prohibition/restriction in AVO (Domestic)	S 10A conviction with no other penalty	N/A

150. Section 165 of the Evidence Act provides that if there is a jury and a party so requests, the judge is to warn the jury that the evidence may be unreliable, and, to inform the jury of matters that may cause it to be unreliable, and to warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it. As I earlier indicated, s 133(3) of the Criminal Procedure Act requires me to take a warning into account if any Act or law requires a warning to be given to a jury. No request was made to me under s 165(2) of the Evidence Act, but I nevertheless take the warning into account that the evidence of AB and CD may be unreliable. That is particularly so in the case of CD who has received a significant benefit for his cooperation with the police and because he is the witness who alleges the accused made the admissions to him prior to what can be verified by the listening devices. It appears that AB and CD went to the police at least partly to try to head off any police action against them when they knew they had been involved with the getaway car.

151. In my opinion AB was a generally honest witness. However, certain aspects of his evidence cast some doubt on his reliability. It was fairly obvious that he was in some discomfort, sometimes severe, while giving evidence, apparently from a back problem that involved sciatica. He had to stand up and walk around from time to time, and have a break on one occasion, to relieve the pain. That pain and discomfort seemed to impair his ability to focus on what he was being asked on a few occasions.

152. His memory for detail was poor on a number of occasions, leading to applications by the Crown to cross-examine him. His evidence about when Sami made reference to the ambulance was inconsistent with what he had told the police in 2018. That may have been inconsequential except for the fact that, when he was first interviewed by the police, his responses to the questions about whether anything was said about the ambulance were simply gestures designed to indicate that he did not know or could not remember anything being said.

153. The matter is only indirectly relevant to the case against the accused, because that case is dependent to some extent on Sami having arranged the killing. Nevertheless, even if I was to accept that nothing was in fact said by Sami about wondering if the ambulance was for Johnny, and that AB had used it to embellish his account to implicate Sami, there is enough other evidence of Sami’s involvement to make that embellishment a matter of little significance.

154. AB’s evidence about whether he saw the Subaru between leaving it near Scott King’s place and when it was burnt out was also somewhat confused. Ultimately, AB seemed to accept that he had been to the car after it was moved from Scott King’s place, and that he had obtained petrol for it and, perhaps, had put the petrol in the car. Mr McMahon suggested to AB that the reason he denied seeing the car in that interim period was because he was trying to distance himself from the events. AB denied that suggestion. I accept that denial. AB had already admitted to considerable involvement with the car both before and after the killing. He had arranged for its purchase, its transportation to Scott King’s place and he had been part of the group that put it onto the trailer to move it after it had been burnt out. It is difficult to see how a false denial of his moving it to a second location before the killing or getting petrol for it resulted in any minimisation of his involvement in acts before and after the killing that were connected with it.

155. The fact that I find his evidence about the ambulance unreliable does not mean that I am not able to accept other aspects of his evidence. The trier of fact can accept part but not all of a witness’s evidence. Of course, if, as I do, find some part of a witness’s evidence unreliable, that means I must carefully consider the remainder of the evidence in the light of that unreliability.

156. Although AB was the President of the Ulladulla Rebels Chapter for about five years, I accept his evidence that he was placed in that position by Sami who in fact controlled the chapter. It was clear that Sami treated AB badly and used him as his beck and call boy. So much was clear not only from AB’s evidence but also from other witnesses’ evidence. It was clear that AB was scared of Sami, and not without good reason. That fear seems to have been the explanation for AB jumping whenever Sami required it.

157. I accept also that I need to give consideration to whether AB’s evidence against Sami is untruthful or embellished to get back at the way Mr Sami has treated AB. I did not have that impression. In my opinion, AB was shocked by finding out that the deceased had been killed, and he came to be frightened not only for himself but for his family as well. Although he assisted Sami in relation to the car after the murder, I consider that he did so out of fear because of what he knew. I accept his evidence that Sami had said that Rob was coming down to sort Johnny out, although he thought that meant an assault, no doubt of a serious kind, but that he never though that it meant Johnny was to be killed. When he found out he had been killed, he would no doubt have been fearful that he might be charged, because of his involvement with the car and the two pounds of pot.

158. Much of AB’s evidence about incidental matters was largely corroborated by other witnesses. Noel Meades, also known as Milo, gave similar evidence of Sami coming with AB to buy the Subaru, and about AB coming back after Johnny’s death on two occasions to warn him to say nothing about the car. Brent Hepburn gave evidence which tended to corroborate AB’s account of being badly assaulted by Sami at the Rebels’ clubhouse. These matters strengthen my view that, generally speaking, AB was an honest witness and I could rely on his evidence.

159. While AB gave much relevant evidence about background matters, the high point of his evidence in relation to the accused, was Sami’s remark to him that Rob was coming down to sort Johnny out. In itself, that says nothing about any plan to kill the deceased.

160. It is clear in the case of CD that he has a motive to give untruthful evidence, not only because of the reduced sentences and paid expenses for the assistance he provided to the police, but because he and the accused had a falling out, on his own evidence, by reason of CD having a sexual relationship with a partner or former partner of the accused.

161. Although I consider that CD was generally an honest witness, some aspects of his evidence caused concern. When he was relating what the accused told him about killing the deceased, CD seemed uneasy. He appeared to be embarrassed when he was asked by the Crown Prosecutor about being wired up, although given the culture in which he moved, that was perhaps not surprising. He became defensive and somewhat aggressive when he was cross-examined about his criminal convictions and his propensity for violence, and when he was cross-examined about matters which he did not consider had anything to do with the deceased’s murder. He appeared to be a person who was quick to anger, and violence seemed, even on his own admission, to be an integral part of his life.

162. He was challenged about his evidence of coming across the burnt out car after the murder. There was nothing inherently unlikely about his evidence of noticing the burnt out car in the first place. The car was a little off the road which he regularly travelled to his own farm, and was near where an excavator was working. I accept that he wanted to engage the excavator for work on his farm.

163. However, he was not being truthful about his interest in the burnt out car or the call he made to Sami about it. Asking the excavator how long the car had been there and thereafter ringing Sami to tell him there was a burnt out car in that location indicates clearly that he knew it was likely to be associated with Sami and the murder of the deceased. That was consistent with what he said in his statement to the police, which was put to him in cross-examination, that he linked the finding of the car to a time close to the death of the deceased. It is consistent with CD ringing Sami on the morning after the murder to tell him that he had heard Johnny had been killed. It is also consistent with his evidence that he then went to AB’s house to ask Sami if he was involved. I do not accept that he believed what Sami said to him, that AB’s son had done an insurance job on the car, and that was why it need to be moved. I consider that he was being untruthful about these matters because he knew that he might be implicated as a result of moving and endeavouring to hide the car.

150. The issues in the trial mean that CD’s evidence is of great significance in relation to two matters. The first relates to the admissions made by the accused. The second, as a result of the matter raised by the accused, is the relationship between CD and the accused. The accused maintains that he made the admissions in an attempt to intimidate CD because the accused wanted to protect himself and his wider family, including his uncle with whom CD had a civil dispute relating to a fishing trawler belonging to CD’s daughter.

151. The question here is whether CD is to be accepted as an honest witness in relation to these two matters. As far as the admissions are concerned, there is in fact no dispute that the accused made the first admission, which is not recorded. The fact that similar admissions were captured on the listening device, corroborates CD’s evidence of the earlier admission.

152. The only dispute in relation to it is when, precisely, it was made. CD’s evidence is that it was made after the visit to Nelligan to pay condolences to the father of the dead boy, probably in August 2016. On the accused’s account it was made a week or two before CD first went to the police, which was in December 2016. I will discuss this matter later, but it is enough to say that I prefer the accused’s account that the first admission was made in November or December 2016. However, while I think CD is mistaken as to the timing, I consider that he honestly believed it was said at the earlier time.

153. I accept the evidence given by CD as to the relationship between him and the accused. I find that they saw a lot of one another socially. However, for reasons I will come to, I accept the accused’s evidence that he had become somewhat unsettled by CD and perhaps paranoid about his motives. Questions were not put to CD to suggest that he was aware of that, or that he had noticed any change in their relationship or in the behaviour of the accused towards him.

154. One piece of evidence that seemed important in assessing whether CD had an axe to grind against the accused, was his repeated statement that he had no idea that Rob had anything to do with the deceased’s murder until Rob told him. This was from someone who had been making enquiries all around the town about the murder, partly to put to rest suggestions that he, CD, had some involvement in it. He was also someone with his ear close to the ground. He reported on a number of other matters where he had had heard town talk, particularly about Sami, and to him. If he was trying, falsely, to point the finger at the accused, I would have expected him to assert that there was talk around the town implicating the accused.

155. I consider that CD was generally an honest witness on whom I could rely on crucial matters. His memory for precise dates and times was not so good. Except as to the timing of the first admission, those dates and times were of lesser significance.

156. EF was not a very satisfactory witness. He appeared to have some cognitive difficulties. His response times to questions were slow and he did not seem at times to understand what was put to him. I thought that he was untruthful when he was asked about whether he sold drugs with Sami. I note that he agreed he had been convicted of Centrelink fraud.

157. His evidence was of limited usefulness in any event. What he said about Sami’s relationship with Johnny and Sami’s relationship with AB was entirely in accord with what other witnesses said, and I accept those parts of his evidence. I also accept his evidence in relation to the guns being damaged. It accorded with other evidence.

158. Except for one matter, I thought Sara Woodcock gave honest evidence. The one matter is this. She was asked in cross-examination if she told the ambulance officers and the police in no uncertain terms that they were not to go into that garage at the house, and she said she definitely did not remember that at all. I do not believe that evidence. Senior Constable Lisa Glover gave evidence that she was at the deceased’s house at about 11.15pm when she saw the Ms Woodcock, her daughters and the ambulance officers leaving the location. She said she heard Ms Woodcock yell out to one of the ambulance officers, “Can you make sure the garage out the back is locked, I don’t want them fucking pigs looking through it”. She also gave evidence that an ambulance officer in a second ambulance which had arrived said to her, “just letting you guys know, she was pretty keen to have the garage out the back locked up so you guys couldn’t go through it”. Senior Constable Glover was not cross-examined to suggest those comments were not made. I accept that they were, and that Ms Woodcock was not being truthful when she denied making the comment.

159. If Ms Woodcock’s evidence has any significance for the issues to be determined in this trial, it can only be to the question of whether the deceased had a firearm and whether he used it when the men arrived at his home. The assertion that he had a firearm derives from the accused’s evidence which suggested that the assailants were effectively set up because the deceased had a firearm which he discharged, leading to the use of the firearm by QR who the accused said is responsible for the deceased’s murder.

160. There was no evidence from anyone to suggest that a firearm was located at the scene of the killing. Ms Woodcock was asked in cross-examination if there was a firearm at the scene or if there was anything she might have picked up and put elsewhere. She denied both those propositions. No questions were put to any of the police or ambulance officers to suggest that there was a firearm at the scene.

161. It seems doubtful that Ms Woodcock could have secreted any weapon. She said she was told by the triple-0 operator to carry out certain matters in an endeavour to assist the deceased, and she was still performing them when the ambulance officers arrived.

162. The rather vague evidence about a knife, which Ambulance officer Moore related, seems something of a furphy. No-one alleged the deceased threatened them with a knife. On QR’s story, as related by the accused, the deceased had only a gun.

163. I accept the evidence given by Mr Matthews. He was a disinterested witness who acknowledged his limitations for matters of distance and by reason of what he could see on the night.

164. The evidence given by the accused was not altogether satisfactory. I consider that his evidence came across as well-rehearsed, and I think he made up some of his evidence either in the witness box or shortly beforehand. Some of my reasons for thinking that comes from the fact that aspects of his evidence concerning other witnesses were not put to them in cross-examination, the failure for which I certainly do not attribute to his Counsel who conducted his case with skill and competence. For example, the evidence that he was snorting cocaine while speaking to CD in June 2017, recorded on the listening device, was untruthful. He wanted to suggest that it was only when he heard the recording for the first time on 4 July that he remembered that he was doing that. In fact, he heard the recording with everyone else in court on 1 July while CD was giving his evidence in chief.

165. Other significant matters about which he volunteered evidence in the witness box, and on which the other relevant person were not cross-examined, included what he alleged CD said to him; at [101] and [108] above – the accused better watch out, he would be next, the Islanders were going to kill him; at [102] above - the threats CD allegedly made to the accused’s aunty and to the accused in relation to the trawler dispute; at [103] above – the accused’s assertion that CD was a very close associate of QR. I note that CD was in the witness box on three separate days. There was, therefore, no difficulty communicating instructions. I do not believe those parts of the accused’s evidence.

166. I do not accept his evidence that the meeting at McDonalds near the airport was not pre-arranged, or that it was for the principal purpose of speaking to AB about JK and his work ethic. I accept that this meeting had been organised by Sami to further the arrangement between them to sort out “the Johnny issue”.

167. He also gave evidence of matters in the witness box which were not found in his statement to the police of 26 November 2018 including that he was intoxicated by drugs during the trip to and from Braidwood and Canberra, when the conversation between the accused and CD were recorded on the listening device.

168. Despite these matters, I do not disbelieve all of his evidence.

169. It is necessary to remind myself, that the accused has no obligation to prove anything in this trial. It is for the Crown to prove all the necessary elements of the offence beyond reasonable doubt. The accused has given his version of the events. The Crown must satisfy me that there is no reasonable possibility that the accused’s version could be true.

170. The Crown case is ultimately entirely dependent upon an acceptance of the truth of the admissions made by the accused to CD when first made in 2016, and subsequently as recorded on the listening device in December 2016 and June 2017. While the accused does not deny that he drove the three other men to the deceased’s house and drove them away after the killing, there is no other evidence that implicates him in the shooting of the deceased. There is background evidence concerning Sami, and evidence suggesting that the accused was coming to Ulladulla to sort out what was said to be a problem with the deceased, but that evidence does not suggest that “sorting out” involved other than, at worst, a serious assault of the deceased. So, AB gave evidence that Sami told him:

Something about just getting Rob there or something, I don’t know, sort of getting Rob to, you know, probably come and sort Johnny out, like more – I just thought, we all sort of thought it was more like punch up sort of thing.

185. The accused gave similar evidence when speaking of the meeting at McDonalds when he spoke to Sami and said to him:

I told him that Easter and some boys would be going down to sort out the Johnny issue and, yeah, give him a good drumming and find out why the addresses were given up.

186. Although the accused said that the term “drum him” meant “speak firm with him and ask him the reasons why he’d given the addresses out, and if anyone else had asked him for the addresses”, I do not accept that that was what the expression meant. Some form of violence was to be involved which is clear from the taking of a bat and knuckle dusters to the scene. Nevertheless, none of this evidence suggested that the deceased was to be killed.

187. There is something of a divergence between the accounts given by the Crown witnesses and the account given by the accused in relation to the involvement of Sami. On the accused’s account, he merely informed Sami that Mark Easter had made the arrangements for the boys to go down and sort Johnny out. Further, on the accused’s account, Sami at the time of the Rebels’ Perth Run later in 2013 seemed to know little about what had occurred. That evidence stands in stark contrast with the Crown evidence which satisfies me beyond reasonable doubt that Sami was involved in the matter from the start. He organised for the purchase of the car and for the arrangements made so that the accused and those coming down with him would locate the car. Sami was then involved in the burning of the car at a later time. Again, none of that suggests that Sami intended that the deceased would be other than assaulted. Indeed, what the accused reports Sami asking at the Rebels’ Perth Run is consistent with him being shocked, or at least surprised, that the deceased was killed, and wanting to understand why that occurred.

188. I am satisfied beyond reasonable doubt that the accused has endeavoured to minimise his involvement in what occurred by suggesting that it was Mr Easter who organised it, and that he had few or no dealings with Sami to bring the matter about. As I have said, however, none of the evidence concerning Sami’s involvement and arrangements with the accused assists in the determination of the question whether it was the accused or some other person who killed the deceased.

189. In determining whether the Crown has satisfied me that there is no reasonable possibility that the accused’s admissions are false, the following aspects of the evidence are relevant.

190. First, the agreed facts in relation to the tendency evidence concerning QR, the relevant parts of which I set out earlier at [117], tends to provide some support for what appears in paragraph 17 of the accused’s statement to the police of 26 November 2018 where he recounts his first meeting with QR. On that occasion, the accused said QR showed him a black handled .38 revolver which QR said he was going to use that night to shoot at Jim Byrnes’ house in Bondi. It also tends to provide some support for the accused’s evidence that QR had a .38 revolver in the back of the car after the shooting of the deceased.

191. The evidence points strongly to the conclusion that one of the guns used in the killing was QR’s .38 revolver. The evidence was that it was damaged or ruined by being left in bleach for too long. The “Afghanistan guys” who went down to the house were upset about the damage to the guns and had to be paid off. I accept CD’s evidence in that regard, and reject the accused’s evidence that the payments made through CD’s brother at the Sydney Fish Markets were for some other purpose. The “Afghanistan boys” must be a reference to one or more of QR, Moey and AJ, although there was no other evidence that any of them was in fact Afghani.

192. Although in the admissions made by the accused to CD, the accused said that he used a .38 revolver to kill the deceased, the tendency evidence suggests that QR would have himself been armed, possibly with a .38 revolver at the time they went to the door of the deceased’s house. There is no evidence that the accused borrowed QR’s revolver except that it appears that one of the guns subsequently damaged belonged to QR. There is no other evidence of where the accused would have sourced a .38 revolver to carry out the killing.

193. The tendency evidence certainly suggests that, all other things being equal, QR was more likely than the accused to have killed the deceased. I do not find that QR killed the deceased, but the possibility that he did so is not a fanciful one.

194. Secondly, the tendency evidence, and the accused’s account of his first meeting with QR makes some sense of what QR is supposed to have said to the accused in the car after the killing, “You know, Rob I am always fucking strapped.” That provides some small support for the account given by the accused.

195. Thirdly, on balance I accept the evidence of the accused that the first admission was made to CD later than August 2016 and likely in November or December 2016. When CD was cross-examined about the timing of that admission he gave the following evidence:

Q. What I'm suggesting to you, sir, is that a conversation along those lines might have happened much later in 2016, but it did not happen at that time, is that a possibility?

A. Oh, Kieran's got the dates down when I gave the statement, so it would be all there when he told me and what he told me and that's the truth what I writ (sic) down in the statement.

Q. What I'm suggesting to you, sir, is that the first time he told you anything about the John Salafia case was much closer in time to the point in time when you first went to the police; it was only maybe a week or two, maybe in the few days before then?

A. Like I said, I can't remember the dates. All I can remember is when Robbie told me and then I went and seen the detectives, so a little bit after I seen Kieran.

Q. That makes sense, doesn't it, because the funeral of this young fellow, wasn't that in August?

A. I can't remember, I didn't go to the funeral. We went and seen Shane before the funeral I'm pretty sure. I'm not quite sure. Or after, I can't remember. I think it was before.

Q. But the timing of those events was August 2016, wasn't it?

A. Oh mate, like I said I don't remember the dates. If I haven't got a statement in front of me I can't remember the dates.

196. A little earlier in his evidence, CD said:

…when Robbie told me what he told me that’s when I contacted detective, Kieran.

197. CD first saw the police about this matter in late November or early December 2016. In circumstances where CD was vague about dates but said that “When Robbie told me and then I went and seen the detectives”, I consider it unlikely that he waited from August until late November to do so. The significance of that first admission being made in November or December is that it is likely to have been made after the accused was assaulted by the Islanders at a time when he may have been using drugs heavily and becoming more paranoid about his own safety. That state of affairs raises the possibility that his explanation for trying to talk himself up to CD was true.

198. Fourthly, a matter of some significance is the fact that in the course of making the admissions, the accused claimed to have been involved in two other serious incidents which could not have been true. The first of these concerned the shooting of a man in Sydney in Surry Hills. The account of this event was recorded on the first listening device recording and occurred immediately before the passage set out at [68] above. The passage reads:

RM - He was fuckin useless that cunt, talked the walk, you know said that...fuckin shitting himself

CD - Made out like he was staunch Oh really

RM - Yeah

RM - Fuckin, We were going to do a hit, he used to live opposite Surry Hills Police Station and I got 2 …of heroin... Oxford Street… I walked in his house, fuck they’re all tooling up. ha.

RM - peppered this cunt…we shot him

CD - you did or he did?

RM - I did, he was with me but, before we left I had a .22 revolver. I’m getting him to load it and the cunt wouldn’t stop shaking

CD - really

RM - Nup..could hardly get the pellets in

CD - didn't he chop some cunt up for bashing their mother   

RM - Fucking, it was like half his family

CD - Oh ok

RM - He just hit him with a machete or something across the head

CD - Oh ok and then

RM - Yeah he was fuckin useless, he was like a little cat every night he was trying to run away…   what the fuck

RM - he just so, I just jumped the fence and kicked the back door in

M (sic) - Kill him?

RM - No...bang bang in the guts...and run when I went to jump the fence, the neighbour stuck his head over and said what are you doing?

Fuckin locked me keys inside...jumped the fence fuckin bang bang run out the cunt was still walking back

CD - With a silencer?

RM - Nah.

CD - Oh really

RM - Yeah but I was fucking, when he got done ... boom.

CD - Fuck you were fucking living a hectic life up there Robbie.

RM - Can’t tell you half of it man.

CD- Yeah, I don't want to know.

RM - …   

199. Senior Constable Glenzendorf said that as a result of enquiries he made about the Surry Hills incident, he was not able to match the information with any known incident and from accessing hospital information he could not connect the accused’s assertion with any known event.

200. CD also gave evidence that the accused said that he had been present at the time Mark Easter was shot and had been involved in that killing. CD had earlier given information to Senior Constable Glenzendorf about the circumstances of the killing of Mark Easter. It is not appropriate in this judgment to record the details of that, because there are outstanding criminal proceedings in relation to the death of Mark Easter. A confidential exhibit in the present proceedings demonstrates clearly that what was reported by the accused to CD about Mark Easter’s killing was false in a number of respects. The falsity of those matters suggest that the accused was not a party to Mark Easter’s death.

199. Fifthly, CD gave evidence that, after the accused had told him about killing the deceased, CD asked him, “What was it like to kill somebody?” and the accused said, “This was my fifth one” and he held his hand up showing five fingers extended.

200. Senior Constable Glenzendorf gave evidence that there was no known information suggesting that the accused had committed four other murders.

201. These various statements by the accused, about being involved in five murders, about shooting a man in Surry Hills, and about his involvement in Mark Easter’s death, provide some support for the accused’s evidence that he was saying these things to CD out of some sort of concern about CD or others, and in an effort to paint himself in a favourable light as a tough man so that CD or others would not attempt to hurt him or his family. Given the proximity of the known false statements about these matters to the admissions made in relation to the killing of the deceased, there is a possibility that the admissions made by the accused about the killing of the deceased are similarly false.

202. The accused’s evidence that CD was constantly asking him about the deceased’s death and Mark Easter’s death is not without any basis. CD managed on the two occasions he was wired to bring the topic around to the deceased’s death. The second of those occasions involved CD turning up, seemingly unexpected, at the accused’s house. CD agreed that he used an article in the newspaper about Mark Easter’s death to raise that matter with the accused, and that he had brought up the matter of Mark Easter’s death on a number of occasions with the accused.

203. The accused gave evidence that he moved back to Bateman’s Bay after the killing of four members of the Rebels including Mark Easter, Ricky Ciano and Michael Davey. Those deaths, he said, led him to using drugs heavily and becoming paranoid and fearful for his own safety. He said that he had been scared of QR ever since the deceased’s killing. That last matter may be doubted on the basis of the photos of the Rebels 2013 Perth Run, and the failure of the accused, as the President of the Sydney chapter of the Rebels, to approach the Rebels National President, Alex Vella, to have QR expelled from the club. However, the tendency evidence provides at least some support for the accused’s concerns, in that it points to Easter, Ciano and Davey having been killed by QR.

204. At a time after the accused’s altercation with the Islander men, during which CD was persistently raising the deaths of the deceased and Mr Easter, it is not fanciful to accept that the accused may have wanted to make out to CD that he, the accused, was not to be trifled with. Whilst it is clear from the photos of the accused in 2013 that he was a large and well-muscled man, so too was CD. What is also clear is that CD is and was an aggressive person when challenged, and was easily riled.

205. Sixthly, the killing of the deceased could not have occurred in the way the accused described it to CD. The evidence is that there were five shots fired and that they were fired from outside the house through the screen door. There is no evidence to support the statement that the screen door was opened and that a shot was fired into the deceased’s head. Whilst that conclusion leaves undetermined how the human tissue with the deceased’s hair found its way near to the area where the sensor light was, there is simply no evidence to conclude that the human tissue was placed there on that night or at the time the shots were fired.

206. Finally, the evidence supports the conclusion that it was never the intention of either Mark Easter (from what is reported he said), Sami Hamilainen or the accused to go to the deceased’s house to kill him. Even allowing for the rough justice meted out by outlaw motorcycle gangs, what the deceased was supposed to have done would not, in their terms, have merited more than “a flogging” as one witness put it. The taking of bats and knuckledusters tends to support that conclusion. The intention was to sort it out so that there would be no repeat of the behaviour.

207. If, as seems possible, the men who visited the deceased were wearing Comanchero gear so that the deceased could be “persuaded” by people purporting to be Comancheros into backing off from what he was doing or had done, that plan would be entirely undercut by the accused being amongst those men because the deceased knew him and knew that he belonged to the Rebels. That gives some support for his account that he was only the driver. It may also be accepted that he, alone of those who attended the deceased’s house, knew the area in order to make a quick getaway.

208. I do not consider that what the deceased’s daughter heard him say, “What the fuck do you want?”, is indicative of the deceased having recognised anyone at the door. The statement could as easily have been made to anyone who turned up at the deceased’s house where his daughters were present, unexpectedly, late on a Sunday night, purporting to be Comancheros. Such an aggressive response is not inconsistent with the evidence about the deceased’s assault of Luke Sanderson. Further, as CD recounted what the accused said, the deceased asked that question before the accused disclosed his presence at the door, because the deceased was supposed then to have said, “Oh Robbie”.

209. The one remaining anomaly is the statement reported by the accused that QR said that the deceased had a gun and fired first, which led to QR firing at the deceased. Even if QR did say that, it does not make it true. Indeed, it is contrary to the evidence that there were five shots fired, and all were fired from outside the door. There is no evidence of a bullet having gone through the screen door the other way. Further, if the men were in Comanchero outfits, it makes little sense that the deceased would have fired on them almost immediately.

210. Of course, as I have earlier said, the accused does not have to satisfy me that QR was the person responsible for shooting the deceased or that the accused was not the person responsible for shooting the deceased. The Crown must prove beyond reasonable doubt that the accused did so. The matters which I have identified raise a reasonable possibility that the admissions made by the accused were false. If that is so, there is a reasonable possibility that the accused did not kill the deceased. In those circumstances, the accused must be acquitted.

211. Accordingly, I find the accused not guilty of the murder of John Salafia. However, I find that the accused is guilty of being an accessory after the fact to the murder of John Salafia.

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Amendments

22 September 2020 - Publication restriction lifted.

Decision last updated: 22 September 2020