R v Moosawi

Case •

[2023] NSWDC 319

•

12 July 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Moosawi [2023] NSWDC 319
Hearing dates: 19 – 20 June 2023, 22 June 2023
Decision date: 12 July 2023
Jurisdiction:Criminal
Before: Coleman SC DCJ
Decision:

The accused is found not guilty of the offence of firing a firearm in a manner likely to endanger yourself, other persons or property.

Catchwords:

CRIME – Principal judgment – Firearms offences – Fire a firearm in a manner likely to endanger the safety of yourself, other persons or property – Judge-alone trial – Circumstantial Crown case – Not guilty verdict

Legislation Cited:

Crimes Act 1900 (NSW), s 93G

Criminal Procedure Act 1986 (NSW), s 133

Evidence Act 1995 (NSW), ss 165, 191

Cases Cited:

Fleming v The Queen (1998) 197 CLR 250

R v Baden-Clay (2016) 258 CLR 308

Category:Principal judgment
Parties: Director for Public Prosecutions (NSW) (Crown)
Sayed Mohammed Moosawi (Accused)
Representation:

Counsel:
Mr A Isaacs (Crown)
Mr D Pace (Accused)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Oxford Lawyers (Accused)
File Number(s): 2021/00279204

JUDGMENT

Offence and Background

  1. The accused stands indicted that between 27 September 2021 and 28 September 2021, at Merrylands, he fired a firearm in a manner likely to endanger the safety of himself or other persons or property, being an offence under s 93G(1) of the Crimes Act 1900 (NSW).

  2. The allegation the subject of the indictment arises from events the Crown alleges occurred at premises at 226 William Street, Merrylands (“the Lahood Premises”) on the night of 27 September 2021. The Crown case is that sometime before 8.15pm that night, there was an exchange of gunfire between a person who was in a white Mazda CX-5 on the road outside the Lahood Premises and a person who was inside the boundary fence of the premises. It is the Crown case that the person who fired at the car from inside the Lahood Premises was the accused.

  3. The curious feature of this case is that despite there being evidence of multiple shots exchanged between the respective shooters that night, there was no report of the matter to the police by either any of the persons who were at the Lahood Premises or any neighbours or members of the public. The shooting came to light by way of police intelligence and telephone intercepts of the accused’s mobile phone undertaken pursuant to a Telecommunications Service Warrant.

  4. By reason of things recorded in calls to and from the accused’s phone on 28 September 2021 and other intelligence, police attended the Lahood Premises to conduct a check on Jabour Lahood (“Jabba”). He lived at the premises. He was also subject to bail for other matters.

  5. The police noticed impact damage to two fences consistent with damage having been made by projectiles such as bullets. Police formed the view that a firearm may have been discharged at the site. A warrant for the search of the Lahood Premises was obtained and investigating and crime scene officers made findings which led to the conclusion that there was, indeed, a weapon (or weapons) discharged there.

  6. The Crown case is circumstantial. There were no witnesses to the events - at least none who gave evidence. The Crown relies on inferences and conclusions it says can and should be drawn to the evidence as a whole, including telephone intercepts. It says the accused made admissions which have been recorded in the telephone intercepts.

  7. The trial was conducted as a judge-alone trial before me. After giving myself some general directions, I will move onto the evidential and factual findings and then consider the Crown case in more detail and the defence response.

General Directions

  1. In compliance with ss 133(2) and (3) of the Criminal Procedure Act 1986 (NSW), and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I remind myself of the following principles of law and give myself the following directions.

  2. As the accused has elected for trial by judge alone and he has pleaded that he is “not guilty” to the count on the indictment, it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of that count and to return my verdict according to the evidence that I have heard and that which is admissible against the accused.

  3. It is for me to assess any witnesses called to give evidence and to assess the various exhibits, including the Agreed Facts pursuant to s 191 of the Evidence Act 1995 (NSW), and to decide whether such evidentiary material is reliable and honest. I note that, ordinarily, the reliability of any witness’ evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness’ honesty; the other is the witness’ accuracy. In this case, the only witnesses called were police or other professional type witnesses and no question as to their honesty was raised. I accept that all the witnesses called gave evidence honestly and reliably.

  4. I have heard addresses from the Crown Prosecutor, Mr Isaacs, and Mr Pace, who appeared for the accused. I have considered the submissions made by them and given those submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.

  5. I note that, as the tribunal of fact, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my common sense. I acknowledge that I have a very important matter to decide in this case - important not only to the accused, but also to the whole community. I must, as the sole judge of the facts, act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented against the accused during the course of the trial. That evidence includes the oral evidence of all witnesses, as well as the material exhibited by the parties in the case.

  6. I note that in relation to accepting the evidence of a witness or an exhibit, I am not obliged to accept the whole of the evidence of any such witness or exhibit. I may, if I think fit, accept part and reject part of such evidence.

  7. I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the proposition. I note it only becomes evidence of the fact if the witness accepts that proposition is true or if there is other evidence that proves the proposition.

  8. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. I may only draw an inference from proven facts if such an inference is the only reasonable inference that can be properly drawn from the proven facts.

  9. In a criminal trial, I remind myself I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means I should be extremely careful about drawing any inference against the accused. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.

  10. The accused had, as we all do, a right to remain silent when spoken to by the police and no adverse inference can be drawn against an accused who remains silent in that situation. In this case, I draw no adverse inference against the accused because he exercised his right to silence when he was arrested.

  11. I now direct myself on the onus of proof. This is a very important direction. This is a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests on the Crown in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.

  12. The accused did not call or give any evidence in response to the Crown case. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged. As I have mentioned, the accused bears no onus of proof in respect of any fact that is in dispute. Although an accused person is entitled to call or give evidence in a criminal trial, there is no obligation on him to do so. He is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required.

  13. The accused’s decision not to give evidence cannot be used against him in any way at all. That decision cannot be used as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based on the fact that the accused decided not to give or call evidence. I cannot use that fact to fill any gaps that I think might exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence.

  14. It is, and always has been, a critical part of our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proven guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, then the accused must be found “not guilty” of the charge. The words “beyond reasonable doubt” are ordinary everyday words and that is how I understand them.

  15. If, having taken into consideration the evidence both for the Crown and in respect of any matter which the Crown must establish to make out its case as to the count on the indictment, and after also taking into consideration the submissions made to me by counsel in their addresses, I am not satisfied that the Crown has established any one of the elements beyond reasonable doubt, then it is my duty, as I have said, to bring in a verdict of “not guilty” with respect to the count because the Crown would have failed to do what the law requires it to do.

  16. I remind myself that it is vitally important that I clearly understand the accused must be found not guilty if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any essential ingredient of the offence, even though I feel or may suspect the accused may be guilty, if I have a reasonable doubt in respect of that matter the accused is entitled to the benefit of that doubt and I must find him not guilty.

  17. There is one other matter with respect to the evidence of Andrew Cole, Andrew Thebridge and Steve Grosmaitre. That is that their evidence was given by audio-visual link. I remind myself that evidence by these means is usual procedure in some circumstances; I must not give their evidence any greater or lesser weight because it was given by these means; and I am not to draw any inference adverse to the accused because their evidence was given in that way.

Elements of the Offence

  1. The Crown does not have to prove every single fact beyond reasonable doubt. The onus which rests on the Crown is to prove each of the elements of the charge beyond reasonable doubt. In this case, those elements are as follows:

  1. That the accused fired a firearm; and

  2. He did so in a manner likely to endanger either himself or any other person or property.

  1. In this case, the real issue is whether the Crown has proved beyond reasonable doubt that it was the accused who discharged a firearm on the night of 27 September 2021. If I am satisfied beyond reasonable doubt as to that element, then there is no issue that the second element has been satisfied.

Circumstantial Case Direction

  1. The Crown accepts that its case is circumstantial in the sense that there is no direct evidence that it was the accused who discharged a firearm from the Lahood Premises. There are, as I have said, no eyewitnesses.

  2. The Crown relies on the inferences it says can and should be drawn from the whole of the evidence, including primarily from the telephone intercepts. It says that the only rational inference that can be drawn from all of the evidence is that it was the accused who shot back at the car from the Lahood Premises. It says the Court would conclude that the accused was behind the cream metal fence when he shot at the car.

  3. The Crown says that the accused made admissions in one of the telephone calls recorded in the telephone intercepts. This was a call in the early hours of 28 September 2021 between the accused, Karar Abdul Karim (“Abdul Karim) and Gerard Joseph (“Joseph”). The Crown says that Abdul Karim was the shooter from the Mazda CX-5 towards the Lahood Premises and Joseph was the driver of the car. It says the only rational inference from that call is that the accused admitted he was the shooter from the Lahood Premises shooting back at the car.

  4. The defence submits what the accused said in the call are not admissions when one considers them in the context of the whole of the evidence. It was submitted that it was bravado and that the accused was talking about his associate shooting back and not an admission that it was the accused himself doing the shooting.

  5. I have reminded myself that my function as the judge of the facts in this case extends beyond coming to a conclusion as to whether I find that any particular fact has been established by the evidence. My function also extends to drawing reasonable inferences or conclusions from the facts I find established. “Inference” and “conclusion” here mean the same thing. I will use the word “conclusion” to refer to the line of reasoning that the Crown intends to prove by its circumstantial case.

  6. Circumstantial evidence can be contrasted, of course, with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the alleged crime charged. It may be a video recording showing an accused person committing an act the Crown relies upon as part of its case, or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused.

  7. In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken.

  8. I remind myself that in a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown’s case depends either wholly or in part on circumstantial evidence, then I must reason in a staged approach. The Crown first asks me to find certain basic facts as established by the evidence. Subject to two matters that I will mention, 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 asked me to find based upon the basic facts is that the accused is guilty of the offence charged.

  9. A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole and not individually or in isolation. And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that I approach a circumstantial case by considering and weighing as a whole all of the facts I find established by the evidence. It is wrong to consider any particular fact in isolation.

  10. The correct approach is for me, first, to determine what facts I find established by the evidence. Subject to the two matters I will mention, any particular fact to be taken into account, as I have said, does not have to be proved beyond reasonable doubt. I must then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that the accused is guilty of the offence charged. I remind myself that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.

  11. The two matters that I have mentioned above which are different from other facts are two facts which are essential to the Crown case. The Crown asks me to draw an inference or conclusion as to two matters which are so essential to its case that they must be proved beyond reasonable doubt from the facts which I have summarised. They are, first, that the accused was behind the cream metal fence when the shots were fired from the Lahood Premises towards the Mazda CX-5. Second, that the accused did in fact make admissions that he discharged a firearm in the telephone intercepts that I have referred to.

  12. It will not be open to me to come to a conclusion favourable to the Crown unless I was first to find as a fact that the accused was behind the cream metal fence when the shots were fired at the car from the premises and that the accused did, in fact, admit to being a shooter in the telephone intercepts. As those facts are each essential to me coming to a conclusion in favour of the Crown - because the Crown must prove its case beyond reasonable doubt - then I would first have to be satisfied as to the existence of those particular facts beyond reasonable doubt. These particular facts must be proved beyond reasonable doubt not because they alone prove the guilt of the accused, but because they are essential steps in the reasoning that the Crown asked me to follow in order to establish its case. If the Crown cannot beyond reasonable doubt exclude as a possibility that the accused was not behind the cream metal fence, or that he did not made admissions in the intercepts, then its case must fail.

  13. As I have already said, in relation to facts which are not essential to my process of reasoning, I would not consider those facts I find established by the evidence in isolation but would have regard to them as a whole. If I was satisfied beyond reasonable doubt as to the existence of the essential facts, then I can take those facts, together with all of the other facts I find established and ask whether I can draw an inference or conclusion in favour of the Crown from those facts considered as a whole that it was the accused who discharged the firearm towards the vehicle from the Lahood Premises.

  14. If such a conclusion that the Crown asks me to find is not available, then the Crown’s circumstantial case fails. But it is for me to determine what conclusion, if any, can reasonably be drawn from the established facts and then consider whether there is any other reasonable explanation for those facts other than that of the accused’s guilt. If there is no other explanation consistent with all of the established facts considered together, then it would be open for me to convict the accused.

  1. If, however, I am not satisfied beyond reasonable doubt as to the essential facts to which I have referred, I must return a verdict of “not guilty”. I should also find the accused not guilty if, looking at the established facts as a whole, I cannot conclude beyond reasonable doubt that he is guilty. As I have said, this can also be the position if, at the end of my deliberations, I was of the view that there was some other reasonable explanation which exists for those facts other than that the accused is guilty. If, after a consideration of the whole of the facts, I could not exclude as a reasonable possibility that some other person may have been the shooter from the Lahood Premises towards the car, then I must find the accused not guilty.

Agreed Facts

  1. In this case, there are Agreed Facts contained in Exhibit 7. Agreed facts are facts that the parties have agreed, obviously. In other words, there is no disagreement about those facts and they are not facts I have to decide. I note that in this case the agreed facts are limited in their scope. By that I mean they do not deal with all, or indeed many, of the factual matters that I am required to make findings on. The agreed facts are that:

  1. On 26 August 2021, NSW Police applied for a telecommunications service interception warrant (the Warrant) pursuant to the Telecommunications (Interception and Access) Act 1979 (the Act).

  2. The application for the Warrant sought authorisation of interceptions of communications made to and from the telecommunications service of a mobile phone number ending 081.

  3. The application for the Warrant identified Sayed Mohammed Ali Moosawi (the Accused in these proceedings) as the particular person to which the Warrant was concerned.

  4. On 26 August 2021, the Warrant was issued by an eligible judge authorised to grant such a warrant pursuant to the Act, and given an identification number.

  5. The Warrant was in force from the date of issue until 11 November 2021.

  6. Between 7 September 2021 and 28 September 2021 (inclusive), interceptions of communications made to and from the telecommunications service of mobile phone number ending 081 were collected pursuant to the Warrant.

  7. That the Accused used the mobile service ending in 081 during the entire period that the Warrant was in force, including between 7 September 2021 and 28 September 2021 (inclusive).

  8. That the voice attributed to the Accused in the transcripts of interceptions of communications made to and from telecommunications service of the mobile phone number ending in 081 between 7 September 2021 and 28 September 2021 (inclusive) is the voice of the Accused.

  9. That the voice attributed to the Accused recorded by the interceptions of communications made to and from telecommunications service of mobile number ending in 081 collected between 7 September 2021 and 28 September 2021 (inclusive) is the voice of the Accused.

  10. The evidence is capable of establishing that gunshots were fired from a motor vehicle situated outside 226 William Street, Merrylands fired towards the property of 226 William Street.

  11. The evidence is capable of establishing that shots were fired from within the boundary of property of 226 William Street, Merrylands towards the motor vehicle.

Additional Factual Findings

  1. As the agreed facts are limited in their scope, it is necessary to make additional factual findings based on the evidence called. The evidence in the Crown case was from police officers from various branches of the police service, which included investigating officers, crime scene officers, forensic officers and the officer in charge. Counsel for the accused has included in his written submissions factual findings he submitted should be made. I accept those which I set out below, with some modifications to reflect the findings that I have made. I make the following findings on the evidence:

  2. The car driven to the Lahood Premises on the night of the shooting from which the shots were fired was a Mazda CX-5. I am satisfied that the evidence establishes that on 27 September 2021, that car was stolen from a unit at North Rocks.

  3. During the course of the day or evening of the shooting, the evidence from the telephone intercepts enables inferences to be drawn that establish that Abdul Karim and others attended upon various premises that were connected with both Jabba and Anthony Lahood’s family. They appeared to be looking for them. There is evidence that at one of the locations, it appears that the men were trying to get into Anthony Lahood’s sister’s property by knocking on a window and trying to open a shutter to a room where Anthony resided.

  4. The evidence establishes that at some point prior to 8.15pm on 27 September 2021, the accused attended upon the Lahood Premises at 226 William Street, Merrylands - the premises where the shooting later occurred.

  5. I accept from the telephone intercepts that the purpose of the accused going to the Lahood Premises was to collect money that was owed to him by Jabba. The telephone intercepts allow an inference to be drawn that he was paid $1,000 and was told that the balance was with Joseph on a “card” (see the call between the accused, Abdul Karim and Joseph on 28 September 2021 on pg. 13 of #41391 contained in MFI 8 – hereafter, ‘the Final Call’).

  6. At some point in time after the accused’s attendance at the Lahood Premises, Abdul Karim and Joseph arrived and parked outside the Lahood Premises in the stolen Mazda CX-5. I accept that the telephone intercepts allow me to infer that the accused then approached the vehicle and engaged in a conversation with Abdul Karim and Joseph who remained in the vehicle.

  7. There is a dispute as to whether the accused was behind the cream metal fence when he had this conversation or in front of it (in the sense of being next to the road) and immediately adjacent to the Mazda CX-5 and I will return to this issue.

  8. After conversing with the two men in the car for some short time, the accused asked for Abdul Karim to get out of the car. It is at this point, whilst the accused was talking to the men in the motor vehicle, that Abdul Karim saw a person on the balcony of the Lahood Premises “ballied up ready to shoot” (see pg. 6 and 13 of the Final Call). Abdul Karim said that person then came towards the car (see pg. 25 of the Final Call).

  9. It is accepted by the parties that an available inference is that the reference to the person being “ballied up” is that the person was wearing a balaclava. I find that the reference to a “ballie” does mean a balaclava. I find that the person in the balaclava was Jabba. This finding is supported by the accused’s own comments in the telephone intercepts in the Final Call (see pg. 7, 9, 10 and 11).

  10. Abdul Karim said that upon seeing the man “ballied up” he just started “blasting”. I find that means he just started shooting. He said: “I don’t know what the fuck happened, I seen the bloke bally I just started blasting” (see pg. 58 of the Final Call). In relation to the shots fired by Abdul Karim from the motor vehicle, I accept the submission of the accused, which was not challenged by the Crown, that the evidence does not establish whether any of the shots made contact with the Lahood Premises or not.

  11. The evidence enables a positive finding that Abdul Karim did possess a firearm and that he did, in fact, discharge it towards the Lahood Premises or at the direction of it.

  12. There was a submission made by the accused that I should be satisfied that four shots were fired by Abdul Karim (see [18] of the accused’s written submissions). I do not accept this submission. I do not accept that the evidential references given by counsel for the accused allow such a finding to be made. The hole in the glass pane at the door to the front of the house was not tested and I cannot conclude that on balance it was a bullet hole. Further, the telephone intercepts referred to do not satisfy me that four bullets hit the roof of the Lahood Premises. In any event, I do not need to make such a finding, nor do I need to find whether Abdul Karim fired blanks or real bullets, as such findings do not bear upon the question as to who discharged the firearm in return from the Lahood Premises.

  13. The evidence does allow a finding that it was Abdul Karim who fired a weapon from the car first and that the vehicle started to drive away shortly after. There were return shots, which appeared to have been in response to Abdul Karim’s shots. The ultimate question in this case is who fired the return shots?

  14. It is common ground that the evidence establishes that the return shots were fired by a person from inside the boundary of the Lahood Premises. That is because the evidence establishes impact damage from shots fired in the cream metal fence and in the green Colorbond fence on the Lahood Premises. The damage to the cream metal fence is on the inside of that fence (that is, on the side of the fence facing the house). Ballistic evidence shows that the damage to the cream metal fence was consistent with bullet shots. This is why it is an indispensable fact for the Crown to prove beyond reasonable doubt that the accused was behind that fence when the shooting occurred.

  15. I did raise the possibility in the hearing that the evidence may have indicated a possibility that there was more than one person who returned fire and shot towards the Mazda CX-5. It is the Crown case, however, that there was only one person who shot back at the car and that person did so from within the Lahood Premises.

  16. I accept that the Mazda CX-5 was stopped on the road outside the Lahood Premises with the passenger side near the kerb. I accept the car then drove off, moving from 226 William Street towards the roundabout shown in Exhibit 10. That is, it was moving left from the Lahood Premises when looking at the road from that premises.

  17. I accept the submission of counsel for the accused that the most likely sequence is that the person shooting at the car from the Lahood Premises was shooting to the left, following the vehicle as it drove away. Support for this finding comes from Exhibit 1 (see photographs 2 - 17 in the tab labelled “Hatton”) and the evidence of Officer Aleisha Hatton (at T 53.44 to T 54.7).

Q. It appears in terms of impact damage that you've observed, that's working our way from right to left, it appears there's marker A, marker B and then the damage on the left, is that correct?

A. Correct.

Q. Consistent with the path in which you would travel on the road if you were driving on that side of the road, that is on the left-hand side of the road?

A. Okay, so as in marker A to 2A?

Q. Yes.

A. Yes, it was going from right to left, yes.

Q. From right to left?

A. Correct.

  1. I also accept the submissions of counsel for the accused that the impact damage on the motor vehicle appears consistent with having been caused in locations consistent with the vehicle moving away from the Lahood Premises (see photographs 7 and 10 in tab labelled “Thebridge” of Exhibit 1).

The Crown Case

  1. I will not deal with every detail with the Crown’s submissions. This is not meant in any disrespect to Mr Isaacs, who provided the Court with his usual detailed and careful submissions. I will endeavour to summarise his main points below, but I will also deal with some of them as I traverse the submissions of the defence. If I do not traverse each point made by the Crown, it is because other fundamental findings that I have made mean that such a course is unnecessary.

  2. The Crown case is that a consideration of the whole of the evidence would lead the Court to the conclusion beyond reasonable doubt that the accused was the shooter from the Lahood Premises. The Crown says there is no other reasonable possibility on the evidence other than that the accused was inside the cream metal fence at the time the shots were fired from the Lahood Premises. The Crown submitted it was not a reasonable possibility on the evidence that he was outside the cream metal fence and adjacent to the Mazda CX-5 at that time. The Crown submitted that at no time in the telephone intercepts did the accused actually say he was on the footpath.

  3. It submitted the accused saying in the intercepts that he smelled the discharge from Abdul Karim’s weapon was false. It was really the accused repeating what Anthony Lahood had mentioned about a third party smelling something after the shooting.

  4. The Crown submitted that a proper consideration of the evidence shows that it is not a reasonable possibility that the accused was right next to the car at the time the shots were fired from it. It submits he would have seen the gun, known whether it was a real gun and would have been in the direct line of fire if he was immediately next to the car. It submits a proper analysis of all of the evidence would lead to a finding that the references to the accused being next to or in front of the car means he was behind the cream metal fence, but closer to the car and then he moved towards the house before shooting at the car.

  5. The Crown submits that the intercepted telephone call #40337 where there was a discussion about a revolver and “the one that was on his lap” (see pg. 1 of #40337 contained in MFI 8) does not indicate, as the defence submits, that the accused saw a revolver on Abdul Karim’s lap in the car the night of the shooting (and thus must have been close to the car in order to see it).

  6. The Crown submits the proper interpretation of this intercept is as follows. First, we know that the shooting happened on Monday 27 September. The discussion in the intercept referred to relates to the previous Saturday night, being a different night to the night of the shooting. This, it was submitted, follows from the accused saying “what, tonight?” when he and Anthony Lahood were discussing whether the gun was a real firearm (not one that only fired blanks) and Lahood tells the accused that his son “reckons he’s seen it. He goes that’s the same one that they had. That’s the one that they’ve got” (see pg. 2 of #40337 contained in MFI 8). The Crown submits this leads to the conclusion that Jabba saw a revolver on Abdul Karim’s lap on the previous Saturday night.

  7. I think there is force in that submission by the Crown. I do not accept the defence submission that this discussion in that intercept supports a conclusion that the accused was immediately next to the car and saw the weapon on Abdul Karim’s lap. If he had, it is unlikely he would have said “what, tonight?” when he was told by Anthony Lahood that the gun with Abdul Karim was “the real thing” because Jabba reckoned he saw it and that it was the same one he had seen on the Saturday. However, this acceptance of the Crown’s submission does not necessarily mean that the accused was behind the cream metal fence at the time of the shooting, nor that he was the shooter.

  8. The Crown went through various other telephone intercepts and said that the evidence as a whole led to the conclusion beyond reasonable doubt that the accused was inside the cream metal fence between the house and the fence. For the reasons I expand upon below, I do not accept that I can be satisfied beyond reasonable doubt that that is the case.

  9. The Crown case is, further, that the only reasonable conclusion from the telephone intercepts, in particular the Final Call, is that the accused admitted he was the shooter. It submitted that there was no basis to conclude it was bravado on his part. It was submitted that the accused admitted he had access to firearms and openly admitted he fired a weapon at the car. Reference was made to the accused saying in the Final Call “…I shot at youse back” and “shooting at me like that and I shoot at you back for what?” (see pg. 10 and 22 of the Final Call). The accused also said in that call “…and what do you do, shooting fire at me and what I shot fire at you back so what’s the deal…” (see pg. 45 of the Final Call). There were other references which could constitute admissions as well. I will consider these in more detail below as I deal with the defence submissions.

The Defence Case

  1. The defence identified four matters described in submissions as “factual disputes” which distilled the case for the accused. I will set them out and add comments as appropriate.

  1. Other than Abdul Karim, who was the other person who fired a firearm on the night? That is, who fired the firearm from the Lahood Premises?

  2. Can the Crown exclude beyond reasonable doubt as a reasonable possibility that the other person (who fired towards Abdul Karim) was not Jabba?

  3. At the time Abdul Karim shot from the car, where was the accused? That is, was he inside or outside the cream metal fence?

  4. Can the Crown establish beyond reasonable doubt that the admissions made by the accused are reliable such as the Court can safely act on them?

  1. As I have said, it is accepted by both parties that the impact damage to the cream metal fence and the Colorbond fence at the Lahood Premises caused by projectiles shows that the person who fired the weapon towards the car was inside the Lahood Premises boundary behind the cream metal fence at the time the weapon was fired. The trajectory of the projectiles, whilst not tested or measured, indicated that they were fired “somewhat” perpendicular to the cream metal fence (see the evidence of Andrew Cole at T 68).

  2. The defence submits that this means that the person who fired the shot was “deep within” the Lahood Premises, probably on the balcony or near a hedge and then moved forward on the property, shooting at the vehicle as it drove away to the left, thus hitting the Colorbond fence.

  3. I cannot on the evidence find that the person who shot back at the car from the Lahood Premises was “deep within” that property, but it is found (and accepted by both parties) that the shooter was within the Lahood Premises and behind the cream metal fence.

  4. The defence also refers to the impact damage to the Mazda CX-5. It was submitted that this too indicates that the car was parked out the front of the Lahood Premises and then drove off to the left and I have accepted that this is so. I accept the only rational inference is that the shooter was on the Lahood Premises shooting towards the car.

  5. I have referred to that part of the Crown case which is that the evidence establishes beyond reasonable doubt that the accused was within the cream metal fence. The defence submits that the accused was at or near the Mazda CX-5 on the footpath area outside the Lahood Premises when the shots were fired from the car towards the house. It submits, if that is right, it does not make sense that the accused would then somehow go back into the Lahood Premises before shooting back at the car as it drove away. To get back into the Lahood Premises, the accused would have had to jump the cream metal fence or walk to the driveway gate behind where the Mazda CX-5 had stopped. If he was near the car, it was submitted, if he was the shooter it would have been more likely he would just have opened fire from where he was.

  6. In support of the submission as to the location of the accused, at pp. 23-26 of its written submissions, the defence points to the numerous parts of the telephone intercepts where the accused said that he was “right next to him in front of his car” and “right next to his car” (see pg. 3-4 of #40337 contained in MFI 8). This was in the context of the accused and Anthony Lahood discussing whether blanks or real bullets had been fired from the car and that Abdul Karim had, in fact, been shooting at the accused. The accused also said in that intercept that “if he wanted to get me he would have got me right next to his car. I was there” (see pg. 3 of #40337 contained in MFI 8).

  7. There are further examples where the accused tells Anthony Lahood that he had a conversation with Abdul Karim when he “parked the car” and Abdul Karim wanted Jabba to come to the car (see pg. 10 of #40961 contained in MFI 8). In the Final Call, the accused also says to Abdul Karim and Joseph that he “…went to you, right, I came to you” (see pg. 21). He said to them that he was “standing right next to you. In front of you” (see pg. 25).

  1. The Crown made submissions that there were inconsistencies in these statements. It submitted that the overwhelming inference, when one has regard to the whole of the material (and not just these extracts) is that the accused was inside the cream metal fence.

  2. I have formed the view that I cannot exclude beyond reasonable doubt that the accused was outside the fence and near the car at the time the shots were fired from the car. Put the other way, the Crown has not proved beyond reasonable doubt that the accused was behind the cream metal fence at that time. This finding is consistent with the references I have referred to and that are extracted in the written submissions for the accused about the accused being near or right next to the car. The accused made multiple statements both to Anthony Lahood and to Abdul Karim and Joseph to the effect that he was right next to the car. He was able to talk to those in the car and hear what they were saying and asking Jabba to come to them. I, therefore, cannot conclude beyond reasonable doubt he was behind the cream metal fence at that time.

  3. I have formed this view despite not accepting the defence submission that the accused must have been close enough to see a revolver on Abdul Karim’s lap. As I found above, the more likely inference in that regard is that is a reference to Jabba having seen the revolver (I interpolate when it was fired by Abdul Karim) and it being the same one seen the previous Saturday night.

  4. It may be that as the accused was walking away from the vehicle when Abdul Karim started shooting, in the situation he found himself in, he was not looking at the gun being fired. That is a possible reason why he engaged in a rather lengthy debate with Anthony Lahood about whether it was a real gun or the type of gun that was actually fired.

  5. I accept that it is also possible (although, in my opinion, less likely) that the accused was inside the fence, but close to the footpath and near the car. It is possible that from that position he would have been able to converse with those in the car. The evidence from the telephone intercepts indicates that following the conversation the accused walked away from the car. If he was inside the fence at that time, then he would have been moving towards the house and it is possible that he could have turned and fired at the car from the premises.

  6. The Crown also submitted that if he was next to the car, the accused would have been in the line of fire once Abdul Karim started shooting. I do not think that is necessarily so. He could have been in front of the car and, in any event, it seems he was moving away from the car when the shooting started. It also seems that Abdul Karim was aiming more towards the house (I infer towards Jabba who was coming from the balcony towards the car).

  7. There are thus two possibilities: namely, that the accused was inside the fence or he was outside the fence. However, the onus is on the Crown to exclude beyond reasonable doubt any possibility consistent with the innocence of the accused: see R v Baden-Clay (2016) 258 CLR 308 at [46]. For the reasons I have identified, it has not done so as I cannot find beyond reasonable doubt that the accused was inside the fence at the time of the shooting. Indeed, I consider it the more probable inference that he was outside the fence.

  8. As to the second of the matters raised by the defence, namely, whether the Crown can exclude beyond reasonable doubt the reasonable possibility that the person who fired the weapon from the Lahood Premises was not some other person (that is, Jabba), I have formed the view, for reasons I will now explain, that the Crown has not excluded beyond reasonable doubt that possibility.

  9. The defence has carefully set out an analysis of the evidence - both generally and specifically from the telephone intercepts - which supports an inference that it is a reasonable possibility that it was Jabba who discharged the firearm from the Lahood Premises towards the car. I generally accept those submissions.

  10. The evidence established that when the police came to the Lahood Premises on 28 September at about 6.30pm, Jabba presented himself to the front door. After discovering the impact damage in the fences and obtaining a warrant, when the occupants of the premises were all asked to come outside, Jabba had left. He could not have gone out the front door as the police were in the yard and the area. I accept the defence submission it can be inferred he jumped the fence at the back of the property and likely injured his arm when doing so (see Exhibit 4).

  11. I also accept the defence submission that the evidence enables an inference to be drawn that Jabba had dug up the conduit pipe in the backyard of the premises and removed something, most likely a firearm, and left the scene to dispose of it or hide it, as he knew the police would likely search the property. This is consistent with part of the telephone intercept #39907 where the accused can be heard to say “tell, tell Jabba just to hide [it]” (at pg. 3). The police evidence was that the dig exposing the conduit pipe, from which a lid had been removed, was fresh.

  12. Jabba returned to the Lahood Premises an hour and twenty minutes later and he was arrested for breach of his bail curfew. I infer that he had, in the time that he was absent, disposed of or hidden the firearm, possibly the firearm used on the night of the 27th. I accept it is also possible that if he did dispose of a firearm hidden in the conduit pipe, it may have been a firearm not used that night but one he wished to get rid of as he was subject to a firearms prohibition order and he did not want it to be found in any search.

  13. The evidence also discloses that a CCTV system was at the Lahood Premises. However, police noticed that there was no hard drive in the recording device. The defence asked me to infer that it was removed and destroyed to hide the footage of Jabba discharging the weapon. I do not think I can draw such an inference. There is no evidence that the system ever had a disc in it or was used to record rather than just have live time footage. Further, if the accused was the shooter, the disc could have been removed to dispose of footage showing this. I regard the absence of the disc in the CCTV device as being neutral.

  14. The defence also points to evidence which indicates that Jabba had access to firearms. He was discovered with a revolver in 2023. I accept this indicates he had access to a firearm, although I also accept the Crown’s submission that the accused had access to firearms.

  15. Additionally, neither Anthony nor Jabba assisted police with their enquiries. I regard this as a relatively neutral factor. The absence of cooperation with police may have been because they did not wish to implicate the accused (if he was the shooter) or Jabba (if he was the shooter), or simply because they did not want to be seen to be giving assistance to the police.

  16. The defence also noted that neither Anthony, Jabba nor any of the female occupants of the house at the time of the shooting, nor Abdul Karim or Joseph were subpoenaed by the Crown and called to give evidence. I can take the fact that there was no evidence from those witnesses into account when I decide whether the Crown has proved the guilt of the accused. I remind myself, however, I am not to guess what these witnesses would have said if they had been called. I must not do that at all. But in a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, I am entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused’s guilt. I regard the fact that none of those persons were called as being neutral by reason of the other conclusions that I have drawn on the evidence.

  17. The defence also made reference to numerous parts of the telephone intercepts which it is submitted (and I accept) indicate a real possibility that it was Jabba who discharged the firearm from the Lahood Premises towards the car. As I have mentioned, there is reference to Jabba being “ballied up”, that is, wearing a balaclava. The telephone intercepts summarised at pp. 18-22 of the defence written submissions clearly support an inference that Jabba was the shooter. In particular, I refer to the following references (bold highlighting added):

  1. Anthony Lahood saying to the accused in #40961 at p. 12: “Sayed, bro, it’s funny. It’s funny he didn’t expect us to thingo back at him but Jabba pumped him good”. I infer “thingo back” means shoot back. I infer “Jabba pumped him good” may mean Jabba shot (that is, pumped) at him.

  2. In the Final Call between Joseph, Abdul Karim and the accused, Abdul Karim saying that he panicked and did the wrong thing (that is, he fired at the house) “because the fuckin’ gronk was ballied behind you, the one on the fucking balcony” (pg. 6). The accused says that this was Jabba.

  3. At pg. 7 of the Final Call, there is a reference to the accused saying that he had told Abdul Karim to get out of the car, which he did and looked to his right and there was Jabba in the ballie.

  4. Further, and significantly, at pg. 13 of the Final Call, Abdul Karim says to the accused: “All right, so I, all right, why was Jabba there ballied up, ready to shoot?” I infer from this that it is a reasonable possibility that Abdul Karim saw Jabba with a balaclava on and with a firearm “ready to shoot”. It may also be possible Abdul Karim feared Jabba may have a firearm because he was “ballied up” even though he did not see a firearm. However, the Crown cannot exclude the former inference as a reasonable possibility.

  1. The Crown submits that no one specifically identified Jabba as having a gun or said that Jabba was shooting. I do not agree with that submission in light of the inference I have just mentioned, namely, the inference that Jabba was “ready to shoot” means I can infer that he had a firearm. However, I also note that no third party identified the accused as having a gun or as having fired shots either.

  2. In my opinion, taken together with the other evidence I have referred to and accepted (including, significantly, the reference to Anthony Lahood saying “Jabba pumped them good”), this evidence from the intercepts leads to a reasonable possibility that Jabba was the person who shot from the Lahood Premises. A rational inference from all of the evidence is that the sequence of events the night of the shooting and the next day is as follows.

  3. It is a rational inference that Jabba was on the balcony when the car arrived. He probably identified Abdul Karim who was in the car. He had a motive to attack Abdul Karim and there was evidence that Abdul Karim had been to a relative’s house where Anthony Lahood had a bedroom and had tried to get into that room and was confronted by Anthony Lahood’s sister. Jabba then “ballied up” and moved from the balcony towards the car. Abdul Karim saw Jabba coming in his black balaclava, ready to shoot, and fired his weapon. Jabba returned fire towards the car as it drove off, hitting the cream metal fence, the Colorbond fence and the car. The next day when the police came, Jabba took the opportunity to dig up the conduit pipe hiding spot, removed the gun, and dispose of it or hide it somewhere else.

  4. Having reached the conclusion that the Crown has not excluded beyond reasonable doubt the reasonable possibilities that the accused was outside the cream metal fence at the time of the shooting and that it was Jabba who was the shooter, it remains to deal with the admissions made by the accused in the last call.

  5. The admissions are part of the whole of the evidence that I must consider in the Crown’s circumstantial case. Considered alone, they are very powerful indications that the accused says that he shot back at the car from the Lahood Premises. The Crown accepts that it must prove beyond reasonable doubt that they are admissions that the accused fired a weapon that night.

  6. I do not accept the defence submission that I must warn myself pursuant to s 165 of the Evidence Act 1995 (NSW) that the evidence about the admissions may be unreliable because it said that the Lahoods, Abdul Karim and Joseph were criminally concerned together. First, there is no direct evidence that is so. Second, we are dealing with apparent admissions made by the accused himself in an intercepted telephone call, which I infer he did not know was being recorded.

  7. There is no doubt that the accused said the things he did in the Final Call, such as:

  1. “…He shot…I shot at youse back” (pg. 10); and

  2. “Shooting at me like that and I shot at you back for what?” (pg. 22).

  1. Those words are consistent with the accused saying he shot back at Abdul Karim. However, there are some inconsistencies in what he said as to when he shot back, if he did. The following passage illustrates this point (at pg. 57-59 of the Final Call), where V1 is the accused and V2 is Abdul Karim:

V1:   Okay, cuz, okay what I’m doing, what I’m doing, what I’m doing there, okay, okay let me tell you something, let me tell you something. Why do you think…okay did you hear me bang-bang back? Did you hear that?

V2:   Sorry?

V1:   Did you hear me banging back?

V2:   Sorry my brother?

V1:   Did you hear me bang-bang, bang-bang, bang-bang. I done it straight away?

V2:   (unintelligible)

V1:   What do you think (unintelligible)

V2:   I didn’t know what the fuck happened, I seen the bloke bally I just started blasting.

V1:   Okay, okay blasting, after you took off.

V2:   …. Straight at me, straight out.

V1:   After you took off. Did you see me (makes noise).

V2:   (Unintelligible) my fuckin’ brother’s car has fifteen bullets in it, trust me. I heard it and I seen it…

(bold emphasis added)

  1. The curious thing about this exchange is that the accused repeats that he “bang-banged” after Abdul Karim had taken off. That is, after the car had driven away. Having found that the Crown has not excluded beyond reasonable doubt that the accused was outside the curb side fence, this is perhaps consistent with the accused saying that he shot at the car from the footpath area as it drove away. This may explain part of the damage to the car from the bullets that hit it. This does not explain, however, the bullet damage to the fences, which must have been caused by a shooter firing from inside the cream metal fence. Nor does it explain the reference to Jabba in the ballie, ready to shoot, or Jabba having “pumped them good”.

  2. One possible explanation is that the evidence may have allowed an inference to be drawn that there were two shooters. One from inside the yard (Jabba) and another from outside the yard (the accused). The evidence may have allowed an inference that Jabba fired at the car causing it to drive off and the accused fired after the car “took off”. However, as I have observed, the Crown case is, and at all times has been, that there was only one shooter from the Lahood Premises and that they were inside the cream metal fence. As such, I do not make any such findings.

  3. Taking all of the evidence together, I cannot find beyond reasonable doubt that the accused admitted he fired a firearm. Whomever the shooter was, it is likely that Abdul Karim and Joseph in the car would have seen him. They never once said to the accused words like “why did you shoot back at us?” or such words. Anthony Lahood never referred to the accused as having fired a weapon. Prior to the Final Call, the accused never referred to himself as being the person who fired the weapon back at the car.

  4. It was submitted by the accused’s counsel that he was engaging in bravado when he said what he did by way of the so-called admissions. It is not clear to me why he would have engaged in such bravado, however, I cannot exclude it as a reasonable possibility. The accused may have been trying to big note himself to Abdul Karim and Joseph.

  5. It was also submitted that when the accused was saying things such as “I shot back”, he was really saying those associated with him shot back. Whilst not probable, I cannot exclude that as another possibility.

  6. I have reasonable doubt, therefore, that they are admissions as sought to be relied upon by the Crown. In any event, the accused’s so-called admissions are inconsistent with the other evidence. In particular, the reasonable possibility that it was Jabba who was the shooter and the reasonable possibility that the accused was outside the cream metal fence when the shots were fired from the Lahood Premises towards the car. The Crown’s failure to exclude beyond reasonable doubt both of those matters as reasonable possibilities is fatal to its case.

Verdict

  1. For all of these reasons, I have concluded the Crown’s circumstantial case fails.

  2. I find the accused not guilty of the offence of firing a firearm in a manner likely to endanger himself or other persons or property.

  3. The related backup charges of possess unauthorised firearm and acquire firearm subject to a prohibition order are withdrawn.

  4. Any application for costs to be made by the accused is to be filed, together with any submissions, by 16 August 2023. Any submissions in reply by the Crown are to be filed and served by 15 September 2023.

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Decision last updated: 17 August 2023

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Fleming v The Queen [1998] HCA 68
Fleming v The Queen [1998] HCA 68
Quartermaine v The Queen [1980] HCA 29