R v Puta; R v Nitrovic; R v Nanai
[2002] NSWCCA 495
•10 December 2002
CITATION: R v Puta; R v Nitrovic; R v Nanai. [2002] NSWCCA 495 FILE NUMBER(S): CCA 60180/01; 60208/01; 60219/01 HEARING DATE(S): 5 June and 26 June 2002 JUDGMENT DATE:
10 December 2002PARTIES :
R v Arben Puta; R v Zeljko Nitrovic; R v Satuala NanaiJUDGMENT OF: Heydon JA at 1; Blanch AJ at 2; Smart AJ at 3
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S) : 70040/99;70026/99; 70211/99 LOWER COURT JUDICIAL
OFFICER :Hidden J
COUNSEL : D Dalton (Puta and Nitrovic)
B Stratton QC (Nanai)SOLICITORS: (Puta) Watsons
(Nitrovic) Mark Rumore
(Nanai) Ross Hill & AssociatesCATCHWORDS: Availability of verdict of manslaughter on evidence - judge correct to leave three different varieties of manslaughter - lies - verdicts reasonable and supported by the evidence. LEGISLATION CITED: Nil CASES CITED: M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53
Edwards v The Queen (1993) 177 CLR 193
Maric v The Queen (1978) 52 ALJR 631
Markby v The Queen (1978) 140 CLR 108
Pemble v The Queen (1971) 124 CLR 107DECISION: See paras 260-262
IN THE COURT OF
CRIMINAL APPEAL
60180/01
60208/01
60219/01
HEYDON, JA
BLANCH, J
SMART AJ
- REGINA v ARBEN PUTA
REGINA v ZELHKA NITROVIC
REGINA v SATUALA NANAI
JUDGMENT
1 HEYDON JA: I agree with Smart AJ.
2 BLANCH AJ: I also agree with Smart AJ.
3 SMART AJ: Shortly before 10.20 pm on Sunday 5 April 1998 Orhan Yildirim and Mehmet Unsal were taken to the small house rented by Arben Puta in Allum Street, Bankstown, ambushed and shot dead.
4 Each of Puta, Nitrovic and Nanai (aka Nance) was acquitted of murder but convicted of the manslaughter of both victims. Each appeals against his conviction of manslaughter. Nanai and Nitrovic also seek leave to appeal against the severity of their respective sentences.
5 Initially the appellants were arraigned on two counts of murder along with Ned Bikic, Raymond Arthur Curry, Goran Mackic and Russell Merrick Oldham. During the trial Ned Bikic was granted a separate trial. He was subsequently convicted of one count of manslaughter and one count of murder. Each of the other co-accused was acquitted of the murder but convicted of the manslaughter of both victims. After various preliminary applications including a voir dire the trial before the jury commenced on 17 April 2000 and continued until the jury gave their verdicts on 13 September 2000. The transcript exceeds 3300 pages and there are many exhibits. The summing-up was of necessity quite complex but was expressed in terms which were readily understandable by a jury. It explained the relevant law and put the essence of the Crown case and the essence of the case for each accused and did not seek to press any view of the facts upon the jury. The jury started their deliberations on Monday, 4 September 2000 and returned with their verdict on Wednesday 13 September 2000.
6 Each of the appellants contends that both verdicts against him were unreasonable and cannot be supported having regard to the evidence and resulted in a miscarriage of justice. Puta and Nitrovic contend that the judge erred when leaving manslaughter to the jury as an available alternate verdict upon both counts of murder. Puta further contended that the judge erred in ruling there was a case to answer and not directing verdicts of not guilty upon both counts of murder.
7 The Crown case was that Bikic, Puta, Nitrovic, Curry, Mackic, Oldham and Nanai were parties to a plan to assault the deceased as were Mark May and Carl Otto Mullany. The Crown distinguished between the core group and those recruited by Curry as extras, namely, Nanai, May and Mullany. The Crown pointed to the guns in the house and elsewhere before, during and after the shooting and contended that all accused had prior knowledge of the guns and that they might be used.
8 Nanai's defence at the trial was that he was never a party to the plan to assault the two victims and that he had no prior knowledge of any guns or ammunition nor of the intended use of guns. Puta denied being involved in any enterprise to assault the two victims. He denied having any knowledge of the possession of firearms by his co-accused prior to his leaving the house to collect the two victims. That was the relevant time for Puta.
9 Nitrovic did not concede that he was involved in this enterprise to assault the two victims but directed no submissions of substance to that issue. He denied that he shot Yildirim and contended that the jury could not be satisfied that he (Nitrovic) had any prior knowledge of the presence of guns or any anticipation that they might be used.
10 At an early stage of the summing-up the judge highlighted the issues for the jury (SU4-5):
"As to each of the accused you might be satisfied that he was a party to a plan to ambush these two men, to assault them. However, the crucial question is whether each of them had the knowledge of the presence of guns and the contemplation of their use. It would be quite wrong to reason simply from the fact they were prepared to be involved in that assault that they were therefore aware of guns and contemplated that they might be used."
11 Prior to the evening of 5 April 1998 Bikic, Puta, Nitrovic, Curry, Mackic and Oldham had agreed to lure the two victims to Puta's house where they were to be ambushed and assaulted. The terms of the agreement, the reasons for it and the extent of the proposed assault (or worse) were unclear. Some at least of the offenders believed that they needed extra numbers; hence the recruits. Mullany and May later became indemnified witnesses and their evidence for the Crown was vital to its case.
12 On the evening of 5 April 1998 Curry telephoned May at his home at Miller and asked him "to give him a hand later on that night." May declined because he, his wife and children were having visitors that night. They were Nanai, his wife and daughter. May and Curry had known each other for many years and worked together as doormen. May and Nanai had known each other for about three years, but had met through Curry. The Nanais arrived about 6pm. After they had arrived Curry telephoned and again asked May to "give him a hand." Again May refused, stating that Nanai was there. Curry responded that he would be over soon, arriving at May's house about ten minutes later. Curry insisted that he needed May and Nanai and procured them to go with him.
13 About 6 pm Curry had telephoned Mullany and told him that he would pick him up at a nominated venue about 7 pm and that he had made arrangements for a loan. Mullany had known Curry for about four years, they having worked together as doormen. During March 1998 Mullany told Curry that he needed some money to pay a debt. Curry said that he would try and help him out. Mullany did not hear from Curry until that evening.
14 Curry drove May, Nanai and a man called Colin in Curry's car to Kings Cross where he picked up Mullany. These men were then driven in the car to the 777 Coffee Shop in Goulburn Street, City, arriving about 7.15 pm. Curry, May, Mullany and Nanai alighted. Colin drove off in Curry's car at some stage. Oldham, Mackic, Nitrovic and Bikic were already at the coffee shop. They and Curry formed the major group while the three recruits formed another group. There was interchange between the members of the major group. Whilst at the coffee shop May and Mullany were separately called into a room at the back of the shop. There was a table with money on it. May said that Curry placed $1000 in May's hand and said it was "just for being there". May said that he was assured there would be no trouble. Mullany said that when he was called separately into the room he was told, "there is six hundred dollars there for a standover job" and that it was easy money. According to May and Mullany each saw Nanai go separately to the back area with Curry, stay there for a short period and then return. Nanai asserted in his evidence that he went to the lavatory and did not receive any money.
15 In his evidence Nanai said that at the coffee shop Curry gave him $20 to catch a taxi home because "something has come up". Nanai said that he became annoyed. He needed a lift home. Mullany offered him a lift in the car in which he was travelling.
16 The men left in two cars. Oldham, Mackic, Mullany and Nanai all got into a red Ford Falcon owned and driven by Nitrovic. Bikic, Curry and May got into a BMW apparently owned by Bikic. The Falcon was driven to an Amcal chemist shop in Newtown, Mackic entered the shop and a little later came out with an Amcal chemist bag. He had purchased some rubber gloves and some surgical tape. The vehicle was next driven to 25 Central Avenue, Marrickville. Bikic's BMW was already there. After some discussion the men returned to their vehicles which were driven to Bower Street, Bankstown, close to but just a little away from the house in Allum Street which Puta rented, and out of view of people at 71 Allum Street. It was about 9.30 pm. At some stage a paper bag (the Amcal bag) containing surgical gloves and a roll of surgical tape was passed around. May put on a pair of surgical gloves. Other men either put them on or put them in their pockets. The men walked about 400 metres to Puta's house and were admitted by Puta. That journey took about two minutes.
17 The house was a small dwelling with three adjoining modestly sized bedrooms opening off the southern side of the hallway. On the northern side there was a bathroom/toilet and a door to the garage. The hallway led to a living room which contained a lounge area and a dining area. The kitchen was beyond the dining area. The living area was about 6.2 metres wide and about 6 metres long in the longer section and about 4.8 metres long at its shortest point. It was not a large area for about nine men. In the dining area there was a dining table and four chairs. In the lounge area there was a large corner type lounge with four seats facing a coffee table, television and wall cabinet. Along the northern wall diagonally behind the lounge there was a cabinet or cupboard.
18 The accounts of the subsequent events given by Mullany and May differed. Mullany said that on entering the house he went to the lounge area. Bikic and Puta were standing at the dining table. He (Mullany) sat on the lounge with May and Nanai, with their backs to the cabinet, facing the television on the far wall. Behind Mullany were Mackic and Oldham standing near the cabinet close to Nitrovic. The men were talking to each other. Curry was moving between most of the men there. Puta was sweating heavily and appeared to be nervous. Mullany generally kept facing the television or looked down to the carpet but at one stage he looked over his shoulder and saw someone produce a box of bullets from a green Army bag which had been on top of the cabinet. The box was then placed on the cabinet.
19 After about five or ten minutes, Curry approached Mullany on the lounge and said, "I want this done quickly and quietly because of the neighbours. Once they're on the ground you three walk out the door." Mullany was wearing the gloves and some of the other men had gloves on. Mackic came over and said, "Gag their mouths and tie their hands" and he gave a demonstration. He handed Mullany, May and Nanai pieces of rope about 60 cm in length. Mullany heard a mobile phone ring from behind him, and heard someone (whom he believed was Nitrovic) say, "they have arrived'", that there would be a warning knock and, "Benny [Puta] will go and get them." The telephone records reveal that this telephone call was made about 10.09 pm. Puta left to get the two victims.
20 Mullany said that after Puta left Curry spoke to him, May and Nanai on the lounge stating, "Nance and Mark are to take the first guy when he enters the hallway, the others will get them from the front."
21 In cross-examination Mullany agreed that Puta had left before the rope was handed out, the ammunition was produced and Curry gave instructions as to what rooms they were each to enter and wait in. He was not completely certain that Nanai was on the lounge with him when Curry gave his instructions. May and Nanai walked inside bedroom 3 (the closest to the lounge area). At the doorway Mullany said, "You'll have to take the first guy once he gets past the doorway because if they get before he got to the doorway the second guy would be alerted to that" (sic). Obviously, the plan was that the first man should not be attacked until the second man was inside the house. A premature attack on the first man would alert the second man and possibly allow him to escape or thwart any attack upon him.
22 Curry then walked with Mullany to bedroom 2 (the middle bedroom opposite the bathroom). He was told "to take the second guy after the first guy gets it from Nance and Mark." Curry said that Nitrovic and Mackic would get the second guy from the bathroom, which they had entered.
23 A little later (estimated by Mullany to be about 10 minutes) Mullany said he heard knocking at the front door. All the lights except those in the lounge room were off. Mullany saw the shape of a large person pass outside the door of bedroom 2. He heard a loud bang and the sound of bodies hitting a wall towards the entrance of the lounge room at the end of the hallway.
24 Mullany walked out to the hallway and saw May, Nanai and another person (Unsal) wrestling. Nanai, who had earlier removed his shirt, had blood on his right shoulder. He was behind Unsal with his arms restraining him from underneath. May was in front of Unsal.
25 Mullany turned and faced down the hallway towards the front door. Nitrovic was struggling with another man (Yildirim) near bedroom 1. Yildirim, knife in hand, was thrashing about wildly. Nitrovic yelled, "He's got a knife" and appeared to be badly cut. He was covered in blood, "sort of crumpled over, but still on his feet, holding his chest."
26 Mullany lunged towards Yildirim to grab the hand holding the knife. Mullany heard a gunshot from behind and felt something brush his arm. He turned and saw Nitrovic crouching, holding his stomach and firing a handgun in the direction of Yildirim. Yildirim fell.
27 At that time Mullany heard other gunshots in the direction of the lounge area. On facing that direction he saw Unsal lying face down on the floor with his head facing the lounge area. Bikic and Curry were standing in front of him with Bikic appearing to hold a gun 30 to 40 cm long. May was now standing close to Mullany.
28 In cross-examination Mullany said that he had not seen anyone firing shots from the front of the house in the direction of the back of the house. He had heard shots firing "everywhere". If Yildirim had a gun it was possible that he also fired some shots.
29 May said, "Let's get out of here" and he ran out the front door. Mullany followed and Oldham ran with them. Oldham was bleeding from his left shoulder area and appeared to be carrying a sawn-off shotgun about 50 cm in length. Mullany's hand was cut. They ran up nearby Glassop Street and Mullany threw his gloves in a gutter. Mackic was also with them, and he was holding a silver handgun.
30 In cross-examination Mullany said that on 12 November 1998 after he had accompanied the police to Surry Hills Police Station the police told him that he had the choice of spending the rest of his life in gaol or becoming a witness and telling them what the others did at Allum Street. Mullany felt threatened and pressured but ultimately agreed to assist the police. He was in the presence of police from about 10 am that day until 5am the following day.
31 The following is Mark May's account from the time he entered the house rented by Puta. May said that he, Mullany and Nanai sat around the dining table and the others "milled around the lounge room". That group included the man with the long hair (Bikic), Oldham, the tall man with the goatee (Nitrovic), Mackic, Curry and Puta. The core men in the lounge area were having a conversation to the exclusion of May, Mullany and Nanai. May overheard Puta say pretty loudly, "he didn't want no shooting, no guns". May thought that he saw three guns but he had definitely seen two guns. He thought that they had come out of the cupboard in the lounge area. At the time, Mullany was seated opposite May at the table and his view of the guns being handed out would not have been obstructed. May did not see an Army bag. The young man with the goatee (Nitrovic), (which name I will use subsequently) was given one of the guns, an automatic with a red or dark brown handle. May said that at some stage Nitrovic came up to him, Mullany and Nanai and said he had been threatened and that someone had pointed a gun at him and he "wanted us to hold these guys" and he was going to "get them back" (that is, repay them). There would be no shooting and the only reason they had guns was because the others who were coming to the house had guns. He said that "they will only shoot if they shoot first." Puta said "I go get them" and he left the room with the older man who had long hair (Bikic) and walked towards the front door. In cross-examination May agreed that Puta may have said, "I'll go and get him."
32 In cross-examination May said that the preparations and instructions were given after Puta had left. During the committal proceedings May said that he had been given the details about what would be happening and what he was asked to do there, after Puta had walked down the hallway, most likely before the guns were produced. May also said that although there was a possibility that Puta was not in the living area when the guns were handed out, he believed Puta had been present. It was around the time when the guns were handed out that May said he had heard Puta say he did not want any shooting or guns.
33 May stated that he, Mullany and Nanai were told by Nitrovic to go into the bedrooms. May entered bedroom 3 and Nanai stood by the door. The last time he saw Mullany was at the dining room table. Nitrovic told May and Nanai that there were two people coming and that they were to grab the first one, who was the big guy. Nitrovic had a gun in his hand. May was wearing his gloves.
34 The lights went out. About ten minutes later May heard knocking at the front door. He heard footsteps and someone say "grab them". Nanai ran out of the bedroom followed by May who saw Nanai turn left. Around three or four people were fighting. May and Nanai went down the hallway towards the front door. May grabbed the waist of a big man. There were three or four people around this man. May had his back to the front door.
35 A few seconds later May heard a shot and the sound of a projectile passing him and he froze. Then he heard five rapid shots coming from behind him. When May looked towards the front door he did not see Mullany. The lights were on at this stage. May released his grip on the man he was holding; he was still alive and on his feet. As May turned around he saw a man on the floor. May jumped over him, opened the front door and ran outside. On his way out he saw Nitrovic, who looked injured, as though he had been shot. May started running in the street. He saw Mackic, Oldham and Mullany behind him. He had last previously seen Mullany at the dining table. Oldham was bleeding and at his request May gave Oldham his T-shirt.
36 In cross-examination May said that he did not see anyone with a gun in the hallway before he ran out of the house. May also said he had not seen any rope at the house. I interpolate that it was clear that there was rope in the house. It was found in several places. May agreed that in the committal proceedings he had agreed that as far as he could see Nanai was unaware that guns were being handed out. In cross-examination May agreed that when the instructions were given as to what they were to do at the house, he did not know whether Nanai had been in a position to hear. According to May, at the time of receiving instructions he may have been in the bedroom or at the table. In later cross-examination May agreed that he had made two statements to police in November 1998 and he was taken to several passages confirming the presence of Nanai when instructions were given. May's statements were made much closer to the events. May said, in cross-examination, the police had helped to fill the gaps in his memory and prompt him as to where he may have been driven that night and what had happened at the house.
37 Throughout his evidence, as explained in the judgment of the judge of 6 June 2000, May referred to Nitrovic as the "younger man". This was a phrase which had been used in his police statement. May was cross-examined to the effect that in his statement to the police he referred to the presence of more than one younger man. He had not referred to a balding man with a goatee. During the committal proceedings he could not recall what Nitrovic looked like on 5 April 1998. In his statement May said that the younger man who had sat with Curry in the front seat of the car from the 777 Coffee Shop had been the one who came up to him in the house and told him about having been threatened and teaching a lesson and that it was this man who had been given a gun. May said at the trial that the man who gave instructions in the house was not the same man who had travelled with him in the car from the Coffee Shop and that he had been mistaken. May agreed that he told police that at some stage in the house one of the younger men had said, "They're hit men and killers themselves." May agreed that there may have been men at the house who had not actually been at the Coffee Shop. In re-examination May said he did not have any image of any other person in the house nor could he describe anyone else that he saw that night. On a sketch plan of the house May put nine crosses showing where people were in the house (Exhibit 100). Part of the cross-examination of counsel for Nitrovic sought to establish, in effect, that there was a tenth man in the house, namely, an unknown younger man.
38 There was evidence which suggested that Yildirim and Unsal were picked up in a white Commodore from a Bankstown kebab shop about 10.15 pm on 5 April 1998. It was not in issue that Puta had picked up the two victims.
39 Dr P Bradhurst, who conducted the post mortem examinations said that Unsal's cause of death was gunshot wounds to the head and neck, both shots being fired at very close range (15-45 cms). There were bruises to the top right side of Unsal's head, consistent with a blow from the butt of a firearm and in particular the .22 calibre Sportco shortened rifle. These bruises occurred prior to death but not necessarily before Unsal was shot, if his heart had not stopped beating. There were no injuries to Unsal's limbs or body and there were no defensive injuries.
40 The cause of Yildirim's death was gunshot wounds to his chest, abdomen and lumbar spine. He had been shot seven times, all shots having entered him from behind. Three .45 calibre projectile were recovered from his body. They were fired from the .45 automatic Ruger pistol found on 6 April 1998 in the garden bed of the corner property at 62 Allum Street at the Southern boundary of Bower Street. Four of his gunshot wounds may have occurred while he was lying on the floor. Two wounds passed downwards in the body and so were less likely to have been inflicted when Yildirim was standing. One wound was not inflicted while Yildirim was standing. Three of the wounds were consistent with having been inflicted as Yildirim was falling to the floor or bending over. They were close gunshot wounds and may have been caused by a .45 or .375 calibre weapon.
41 Certain lacerations and abrasions on Yildirim's head were consistent with having been caused by the butt of the .45 automatic Ruger pistol. The blow would have stunned Yildirim or caused him to become unconscious. These injuries occurred before his death, not necessarily before he was shot.
42 Unsal was known as a strong man, fully skilled in martial arts, with a pistol licence and who went target shooting. He worked in the security industry and engaged in debt collection. At various times he was seen in possession of a Glock semi-automatic pistol. He was known to have been keen to acquire a silencer. He wore a shoulder holster.
43 In March 1998 Unsal told Bircan Karaman, a friend, that he (Unsal) had two private investigation jobs, one to recover $100,000 and the other to recover $80,000, that he had to get someone to pay the money and that he would get twenty per cent. Unsal said he had been "chasing this Lebanese bloke and asking him to pay the hundred grand …" that he had warned him twice and had stuck a gun in his mouth and that he would shoot him in the leg and kneecap.
44 Four to five weeks before his death Unsal showed another friend, Mehmet Dur, two Glock pistols (concealed in his pants) and a silencer which he screwed on to a Glock pistol he removed from his back. In the early part of 1998 Unsal told Dur, "I'll get some money very soon, collecting something for the big boys." Unsal spoke to another friend, Fari Salvieski, on 1 April 1998 about his expectation of receiving $20,000 for some jobs he had done and that he was a businessman who looked after Yildirim.
45 Dorota Olicki went out with Yildirim. She had seen him with a small gun in late March 1998 and on another occasion felt what she thought was a knife on his side.
46 There were six tears in Nitrovic's trousers and a tear to the back caused by a sharp bladed instrument, a linear cut to the left sleeve of his shirt and the right front shoulder. Most of the shirt buttons were missing. The distortion of fibres was consistent with damage caused during a struggle.
47 There was residue containing lead, antimony and tin on the clothing of Nitrovic, which was consistent with being gunshot residue, although it was not conclusive. There were similar particles on the hands of Yildirim, indicative of Nitrovic and Yildirim being closely associated with the same source of the particles. The particles could have been dislodged from Yildirim and transferred to Nitrovic if Yildirim were thrusting a knife towards Nitrovic and stabbing him. There were also partially burnt propellant particles on Yildirim which were consistent with him being in front of a weapon as it was discharged towards him.
48 Between 10.30 pm and 11 pm Curry attended Liverpool Hospital in a red Ford sedan and ran into the emergency department. He called for a nurse, saying someone had been stabbed. Blood was on his face, shirt and arms. Curry ran outside where Nitrovic was helped out of the Ford, bleeding and staggering, complaining about not being able to see and having been stabbed. He was wheeled into the emergency room on a wheelchair. Curry did not stay.
49 The red Ford sedan, which was registered in Nitrovic's name, was later found in a Liverpool car park. An open box of white Ansell gloves was on the floor at the back and a pair of white bloodstained gloves was located at the opening of the box. Two of Nitrovic's fingerprints were on the box.
50 Dr S Hazelton operated on Nitrovic on 5 April 1998. He noted two deep stab wounds to his right calf and on his left forearm and they were consistent with having been caused by a sharp object. Dr G Sellars, plastic surgeon, examined Nitrovic on 11 April 1998 and noted wounds to the back of his left forearm, the front of his left upper forearm and two wounds on the lower part of his leg.
51 Dr D Robinson examined Arben Puta on 5 April 1998. He noted a gunshot entry wound on Puta's right thigh and a corresponding exit wound on his right buttock. On 6 April 1998 Puta was examined by Dr A Moynham. There was bruising on the inside of Puta's left lower lip.
52 When Snr Cons Sweeney attended 71 Allum Street, Bankstown, about 11.35 pm he found Puta looking into the front driver's side window of a white Holden Commodore parked in his driveway. He had blood on his T-shirt and he was holding his right thigh which had a gunshot wound. Puta said he was shot and that "they came to ambush me. They try to kill me." He said "There were six of them." Cons Sweeney looked into the house and saw a person lying on the floor. Puta said, "They're dead." When asked who had shot them, Puta said, "I did. I took their gun."
53 Cons Sweeney saw the two deceased men in the hallway. Yildirim was nearest to the front door, lying across the entrance to bedroom 1. There was a .22 calibre Sportco shortened rifle on the floor next to him with seven rounds of ammunition. He was holding a knife in his right hand which was stained in blood and clutching the sheath of a knife in his left hand. Unsal was lying on his back three metres further down the hallway, between bedrooms 2 and 3 with an apparent gunshot wound to his forehead.
54 In Unsal's pockets police found an unfired 9mm cartridge case, a firearms licence, a security licence, and a business card concerning Puta. There was also a 9mm fired cartridge case in his jacket and a disposable glove and stocking. A Firearms Act certificate stated that Unsal was the holder of a 9mm Glock pistol. Yildirim had cannabis leaf on him and amphetamine tablets. In Unsal's car police found knives, a balaclava, imitation wig, beard and facial hair and pepper spray.
55 When the ambulance officer (Monica Bergin) was treating Puta he was talking to her. In response to her question "What happened?" he replied, "I came home and I was ambushed, they were waiting for me." He explained, "There was four of them waiting for me when I got inside." She said, "Did you shoot those two guys?" He said, "Yes, I took the gun off one of them and we struggled." She said, "Did you know them?" He said, "Yes, one of them was my friend, well I thought he was my friend. He set me up." He said that he did not know any of the others. Puta also said to her, "They tried to tie me up, I think they just wanted to talk. They tried to strangle me. I fought with them and if I did not I would be dead. I grabbed the gun." Puta told her that they shot his friend, that there was a lot of shooting and he was shot by accident. There was no physical sign of an attempt to strangle. The officer found Puta's composure to be unusually calm. She did not attribute this to shock as Puta's verbal and physical response was completed in a very calm and orientated manner. The officer noticed marks on Puta's forearms which he attributed to having been punched.
56 Weapons found or sighted included:
(i) A .22 calibre Sportco shortened rifle on the floor of the hallway of the house next to Yildirim.
(ii) A .357 Smith & Wesson revolver in the front garden of 71 Allum Street. It smelt as though it had been fired. Four of the cartridges had been fired and two had not yet been fired. Sweeney asked Puta if he had shot the men with this weapon. Puta said, "I think so."
(iii) A five-shot 9mm Ruger revolver behind the lounge in the lounge room of 71 Allum Street. Its five cartridge cases had been fired.
(iv) A 9mm Glock pistol which belonged to Unsal on a grass verge at Braunbeck Street about 40 metres west of Allum Street. It would not have been possible to fire the weapon in the state in which it was found.
(v) A .45 semi-automatic Ruger in the garden of 62 Allum Street at the southern boundary of Bower Street (on 6 April 1998).
(vii) A silver handgun carried by Mackic as he ran from the house and up Glassop Street.(vi) A sawn-off shotgun about 50cm in length being carried by Oldham as he ran from the house and up Glassop Street
A box containing 43 rounds of .22 calibre Winchester ammunition was found on the top of the cabinet in the lounge room on 6 April 1998. The box contained fifty rounds when new. These rounds had the same brand and head stamps as the seven rounds of ammunition found in the .22 Sportco rifle.
57 Ballistics Evidence
Just inside the front door near Yildirim were six .45 calibre fired
cartridge cases, fired from the .45 automatic Ruger pistol. Three of the .45 calibre projectiles fired from the pistol were recovered from Yildirim's body. Some .45 calibre projectiles were found in and about the flooring.
58 Three 9mm spent bullets fired from the five shot 9mm Ruger revolver found in the lounge area of 71 Allum Street ended up in the bathroom and the lounge room respectively. A .357 calibre spent bullet fired by the .357 Smith & Wesson revolver was found in the hallway as was a fired .357 calibre copper jacket found in the mixture of shrapnel with fragments of lead and copper jacketing in the hallway. Discarded gloves were found in the house and outside and there was rope near Yildirim's body.
59 In his police interview on 12 November 1998 Nanai denied any knowledge of what had happened at 71 Allum Street on 5 April 1998. Police did not arrest him until the next day after he declined the police offer to assist them in return for supporting him in securing an indemnity and after Mullany had provided the police with a detailed statement.
60 Nanai gave evidence to the following effect. On 5 April 1998 he was with his wife and child at May's house. Curry showed up and asked their wives if they could come with him for drinks. Nanai went with Curry and May.
61 The car, which also contained a man known as Colin and later Mullany was driven to a coffee shop in Goulburn Street. Nanai saw people there but no-one he knew. Curry came up to him and gave him $20 to catch a taxi home because "something has come up". Nanai became annoyed because he had cancelled a family night at May's house. He went outside to look for Colin but he and the car were gone. When Nanai re-entered the coffee shop everyone had left. Mullany called out to him and he went in the red car to Newtown and then to Marrickville. Curry asked him what he was doing there. Nanai explained that he had been unable to find Colin. Curry told Nanai not to worry and that they would get their drink at the next stop and then they would go home together. Nanai was then driven to Bankstown where he saw May and Mullany. They walked into a house. Nanai sat on the lounge near the TV. He was not concerned about being there, although he had never been there before, because Curry was giving him a lift home. Curry was in the lounge area. Nanai sat with Mullany and May. He then went into the kitchen to smoke as Mullany and May did not smoke. He did not hear what was being said. When he was seated on the lounge he had his back to the cabinet.
62 Nanai said that as he walked down the hallway to the front door he heard May call out his name from bedroom 3. May wanted to talk and said, "We're fucked" and that Mullany had said there were guys coming and that they would have to hold someone if there was trouble. May handed Nanai a pair of gloves. Nanai asked why and May said so as not to leave fingerprints. Nanai put the gloves in his pocket. He felt very uncomfortable and went to Curry. He asked Curry what was going on. Curry said that some guys were coming but not to worry because it was just a precaution. Nanai told Curry that he did not like the feel of this but Curry told him just to stay in the room with May and do nothing.
63 Nanai went back to bedroom 3. He told May "Fuck this, let's just walk out now." May said that he wanted to stay to make sure Curry was okay. Nanai replied that they should just go out the window. They argued about this and then May told Nanai to be quiet because "they're here." Nanai heard conversations coming from the hallway followed by some yelling. He heard a thump which sounded like bodies hitting a wall.
64 May told Nanai to "go, go, go" and they came out of bedroom 3 and headed towards the front door. There were a number of men in the hallway. The light was off. Nanai saw Puta there, standing in the way between Nanai and the front door. Men were shouting and screaming. Nanai felt May pushing behind him. As Nanai took a couple of steps forward to the front door he heard a loud bang from the direction of the front door, then two more bangs in succession. He left through the front door, passing Puta on the way out. Nanai subsequently realised he had been shot in the shoulder. He did not see anyone outside in the street. He ran home. That took a couple of hours.
65 Nanai stated that he had not seen anyone with guns or ammunition, nor did he hear any conversation about weapons. He had not heard anyone say "no guns, no shooting." He did not see any knives or rope. At no stage did anyone in the house give him instructions as to what he was to do in the house when the men arrived. The only conversations he had as to this were with May. He did not use his body to physically restrain anyone. The next day May came to Nanai's home fearing reprisals from whoever had been at the house.
66 Nanai said that he had lied to police because he feared for his family and was in fear of the associates of the dead men and possibly the men who were at the house. Nanai had also rejected the offer of indemnity by police because of his fears.
67 Nanai was not a participant in telephone calls on 4 and 5 April 1998. His involvement commenced at the 777 Coffee Shop.
68 Nanai was cross-examined on behalf of Curry. They trained together at a Fitness Centre and helped each other to build up their strength. Nanai had almost daily contact with Curry with frequent telephone calls. Nanai agreed that he got the night of Sunday, 5 April 1998 off from his wife at May's place to go out with the boys. He did not have his wallet with him. He trusted Curry. He thought that they were going to have some drinks. Nanai said that it was possible that Curry was away from Puta's house for some time.
69 Nanai agreed that Curry was a solid man with experience in security work. May was a light heavyweight kickboxing champion and Mullany was a strong, powerfully built, pumped up man with experience in security work. Nanai denied that he knew that a job was on. Nanai agreed that when they arrived at the 777 Cafe they had nothing to eat or drink nor were they offered anything. He was not introduced to anyone He sat with May and Mullaney. Curry was not sitting with them He did not ask anyone what they were doing there. Nor did he ask Curry what happened to the drinks.
70 Nanai said that he refused Curry's offer of $20 for a taxi because he (Nanai) thought that he would link up with Colin and get a lift in his car. When Nanai went outside and looked he realised Colin was not there. This took about two minutes. Nanai said that when he travelled in the car after leaving the 777 Cafe he did not introduce himself to the people in the car whom he did not know. He believed that they were going to meet up with Curry. When he caught up with Curry at Marrickville, Nanai did not ask for any money as Curry said that they could catch a ride at the next stop. He thought it was curious that at Bankstown the cars were parked some distance from the house to which they went but he did not take that matter up. He was not concerned. He did not see Curry passing any gloves around as they walked to the house. The first time he saw gloves was when he was in bedroom 3 in the house.
71 Nanai said that he did not see guns and ammunition being produced inside the house. He said that the first time he found out anything about men going down or having to be held was in bedroom 3 from May. May was not asked about this in cross-examination. Nanai insisted that he wanted to leave by the window of the third bedroom but could not persuade May to make up his mind and do so. May wanted to make sure that Curry was okay. Nanai agreed that he came out of the door of bedroom 3 first followed by May. However, May managed to slip past him. There were people all along the hallway. Nanai said that he did not see guns but he heard gunshots. When he heard them he became paralysed and could not move for a short period. He was not amongst the group of men who ran from the house.
72 Nanai did not remember Puta appearing to be very nervous and sweating. Nanai saw Puta when Nanai first entered Puta's house. The next time Nanai saw Puta was when Nanai came out of bedroom 3 into the hallway.
73 Nanai said that while he was in the lounge area he was watching television and engaging in small talk with Mullany. He was not paying any attention to what was being said.
74 Nanai's evidence was to the effect that he went with Curry to the 777 Café, and thence to Newtown, Marrickville and Bankstown, without any adequate information, asking no questions and making no inquiries. At Puta's house he appears not to have noticed much of what was happening. Nanai's evidence is hard to believe. His stated reticence is difficult to accept as is his decision not to leave 71 Allum Street when it became obvious that serious criminal activity was about to occur.
75 Det Inspector Henry Neyenhuys interviewed Arben Puta at Bankstown Hospital on 6 April 1998. A walk-through interview at 71 Allum Street was conducted on 9 April 1998.
76 Puta said that Yildirim had telephoned on his mobile in need of $1000. When Puta met up with him, Yildirim entered Puta's car and said that they should go to Puta's house to talk about something important. Puta said "No" because he wanted to sleep and had to work in the morning, but Yildirim insisted. Another man, whom Puta referred to as the "big man" had also been in the car for a period of time. Subsequently this "big man" (Unsal) alighted from the car and entered a red car.
77 Puta drove to his house with Yildirim. They walked to his front door with Yildirim shuffling him forward. They entered. It was dark inside the house.
78 Puta said that he was grabbed and restrained by two men who came from bedroom 1. The "big man" then pushed him and hit him on his lip. Puta fought back and started hitting the man as well. Puta saw a gun in the big man's hand. Yildirim was somewhere behind Puta, who heard the men who had grabbed him now struggling with Yildirim. Other men came from bedroom 2 and tried to hold Unsal who was aiming his gun at Puta. Puta pushed the gun down. It fired and Puta was shot. He managed to grab the gun but Unsal was still holding onto it. As they were struggling the gun fired towards Unsal. Puta finally managed to take the gun from Unsal's hand and he fired it at Unsal's face. Unsal went down.
79 Puta said that the other men in the house panicked. There were five or six people. Puta heard them start shooting. He was unclear as to how many shots were fired. He turned around and saw Yildirim lying face down on the floor next to a .22 sawn-off rifle which, according to Puta, had been in the possession of the other men who were at the house. Puta did not know who had shot Yildirim.
80 Puta asserted that after the big man (Unsal) fell down, he (Puta) turned and fired a shot to the door area where some of the men were. He tried to fire more shots but there were no more bullets left in the gun. Everyone left the house, some through the door, some through the window. Puta stated that he left the gun in the lounge room on top of the couch.
81 Puta could not explain why Yildrim would lure him to his house to be attacked by a number of people. Puta said he was married but also had a young Turkish girlfriend, whom no-one knew about, and if people in the Turkish community found out it could have led to him being the target of harm. The police found no indication of forced entry to 71 Allum Street.
82 In his evidence Puta said that he had told lies to the police about the peripheral matters leading up to him and Yildirim coming to the house because he was traumatised and wanted to ensure his personal safety. He lied to police by telling them that Yildirim did not have a gun because the truth would not have made sense. He was concerned about the associates of Yildirim and not the other men who were at the house. He knew some of these other men, but not all of them.
83 On 5 April 1998 there was to be a meeting at his house to resolve some problems. He had received a phone call from Yildirim wanting to be picked up and taken to his house that night. Nitrovic, whom Puta had known for many years, also rang him and said he would be seeing him that night at his house. This was for a reason unrelated to what had happened at the house and may have even been a social visit. Nitrovic had not told him about a number of men coming to his house. Yildirim had given him (Puta) this information. Puta said that he did not know why all these other men had come to his house.
84 Puta stated that when he was at home a number of men came through the front door, but as he did not want to implicate anyone he declined to mention their names. However, he said that Nitrovic was there. He spoke to two people at the front door and the rest moved into the house. He did not see any guns, ropes or anyone wearing gloves, but at some point he did say loudly, "No guns, no shooting" because he was worried. Puta said he had seen Unsal and Yildirim with guns and other weapons in the past and he was worried about any confrontations happening in his house. He tried to convince two of the men near the bathroom that it was not a good idea to bring people to the house, but they kept telling him not to worry. He was very angry with them. There was no mention made by anyone in the house about the men in the house using guns if the men expected to come to the house used guns first.
85 According to Puta he left the house about three to four minutes after the men arrived. Just before he left he saw three more people arrive. Some of the men were sitting on the kitchen (or dining) table and some on the couch. He was talking to some men in the hallway. He saw Nitrovic and another man walk out the door to move the car. Puta said that he then left. He did not see Nitrovic again, even after he later returned to the house.
86 Puta went to Bankstown where he saw Yildirim and Unsal. He told Yildirim not to go to the house because he felt uncomfortable about the situation which had developed, but Yildirim insisted. He appeared to be intoxicated or drug affected. Unsal sat in the front seat of Puta's car and Puta felt intimidated. At some point as Puta was driving, the car was stopped and Unsal got out of Puta's car and into another car which Puta then followed to his house. This was a short distance. Puta claimed he was in fear for his life and had no option but to agree when Yildirim insisted that Puta take him back to Puta's house.
87 Upon arrival at Puta's house, Puta, Yildirim, Unsal and another man (allegedly) entered. Puta opened the front door. With Yildirim in front of Puta and Unsal behind him, the three men entered and began walking down the hall. Puta was grabbed by someone from bedroom 2 and hit. Two people came from bedroom 3 and also hit him. A lot of men were now in the hall and some went to the front door area. Puta ended up near the door from the house to the garage. He heard a shot near the front door. He turned and saw Yildirim with a gun which the others were trying to take off him.
88 While Puta was struggling with his assailants he heard gunfire coming from the direction of Unsal. When he was facing the door to the garage he saw Unsal coming up with a gun, so he tried to grab the gun and he succeeded in pushing the gun low so that it did not hurt anyone. As he was trying to grab the gun he heard shots coming from the front area of the house (which was very close). Everyone started panicking and said words to the effect "Get out of here, we got guns". All the men had run from the house by the time Puta had finished struggling with Unsal. His statement to the police that he had fired a shot at someone was a lie.
89 The telephone records showed 12 calls between his number and that of Nitrovic on 4 April 1998. Puta denied he had been planning anything with Nitrovic, other than a social visit. Puta said that the calls between himself and Yildirim on 4 April 1998 were simply general conversations. Puta said that Nitrovic telephoned him about 4.20 pm on 5 April 1998. Nitrovic was a good friend. He was going to be in Bankstown about 9 pm on 5 April 1998 at Puta's home. Puta thought it was going to be a social visit. When asked about telephone calls between his number and that of Unsal, the appellant denied making or receiving any telephone calls to or from Unsal. Puta asserted that he did not know Unsal.
90 Puta agreed that he had been in the vicinity of the 777 Coffee Shop earlier in the afternoon of 5 April 1998.
91 Puta's cross-examination by the Crown extended over 160 pages and three exhausting days. Puta was a very difficult witness. His answers to questions were often not responsive. Sometimes he did not answer the question asked. Often he added a long comment of his own. He was argumentative with some of his answers. He resisted all efforts of counsel and the judge to control him. It was difficult to avoid the impression that, on occasions, he was being evasive. He was cross-examined about the considerable number of lies which he had told the police and the ambulance officers. He suggested at times that the Crown knew that what he was saying was right and that the Crown only had to check with the nominated person. During cross-examination he volunteered material matters never previously raised. He declined to name two men whom he claimed were at 71 Allum Street on the basis that if he did so he would be harmed. Puta appeared anxious to protect Nitrovic. Puta also refused to indicate whether Ned Bikic had been at 71 Allum Street on the night in question.
92 Although Puta attempted to maintain that he had not told lies on crucial matters, he had no credibility left by the end of the cross-examination. He self-destructed. I will refer to but some of the matters canvassed in cross-examination. Because of Puta's conduct the brief summary is a little disjointed and a touch repetitive.
93 Mr Puta denied that the multiplicity of telephone calls to and from Nitrovic and the other telephone calls made on 4 and 5 April 1998 including those to Yildirim and to Unsal's telephone number indicated that something nefarious was being planned. It was hard to resist that inference.
94 Puta said that Unsal and Yildirim had two guns, or perhaps three or more. Puta asserted that he did not see anyone else with guns. He said that when the trouble started he was between bedrooms 1 and 2. His intention was to stop and not hurt or kill people. He tried to keep the barrel of Unsal's gun away from the other people and himself. However, Unsal discharged a couple of bullets. Puta held the barrel. Puta and Unsal struggled and as this occurred people ran away. Only Puta and Unsal were left. According to Puta he did not see his co-accused with guns nor his co-accused do anything wrong.
95 About 7 pm on 5 April 1998 Puta was still in Chinatown. By about 8.13 pm he was in the Enfield area heading back to Bankstown and by about 9.30 pm he was in the Bankstown area. He thought that the group of men arrived between about 9.15 pm and 9.30 pm. He let them in and left his home a few minutes after they arrived.
96 Puta stated that the group of men who entered his house included his co-accused and others whom he was not prepared to name. He had a discussion with two men whom he declined to name, who assured him that no guns would be used. They were just going to steal.
97 Puta said that three struggles took place, one at the front door, one near the door to the garage and one near the bathroom door. Puta's evidence was to the effect that unwillingly he became enmeshed in various fights and struggles. He was hit in the face and the body. The situation was chaotic. At an early stage of the fight Unsal had the Glock gun in his hand and later he had another gun in his hand.
98 Puta said that although he told the police that he had shot somebody in the shoulder that was a lie. He did not do so. However, Nanai was shot a glancing blow to the shoulder.
99 At the close of the contest Puta went to the front door of the house and opened it. He said that when he went outside the house all the people were gone. There were people in the street running. Puta agreed that three people ran out of the house. He agreed that he came out, but not immediately after that, returned inside the house and the lights went off.
100 Puta said that Nitrovic was paying him a social visit. It had nothing to do with the proposed meeting and the incidents which took place. Puta was angry and preoccupied in dealing with the other men in his house. Nitrovic would have seen this. Nitrovic left a short time after he arrived. Puta did not see him again that night.
101 Puta said that during the struggle, but not before, he saw people who were wearing gloves. Unsal and Yildirim were not wearing gloves. Puta was not able to say which men were wearing gloves.
102 Puta denied that he was at 71 Allum Street when he received a telephone call from Yildirim. Instead, he was in his unit. Puta also denied telephoning anyone and arranging for that person to give a warning knock on the door of 71 Allum Street shortly prior to Yildirim and Unsal entering that house.
103 Puta admitted that he told the ambulance officers a series of lies and the police a series of lies. Puta said that Yildirim fired the first shot and then people started screaming. He said that he was physically attacked in the house. He thought that Nanai tackled him. Three men grabbed him around the body and kept hitting him. He hit them back.
104 As to Unsal, two people tried to restrain him by grabbing him around the torso and his arms and shoulders. At an early stage the Glock gun jammed, possibly having fired one or two bullets. About the time the Glock jammed Puta saw Unsal with another gun. Puta conceded that he did not see Unsal firing the Glock but believed from his knowledge of Unsal that he did. Puta relied on the empty cartridge shell in Unsal's pocket.
105 Puta said that he ran and grabbed the gun from Unsal while some of the other men were holding him.
106 Puta insisted that Yildirim and Unsal wanted to kill his co-accused. Puta said that while he was struggling with Unsal the gun went off a couple of times. Unsal was hit. Puta believed that somehow Unsal got shot in the head with the gun still In his hand. His finger was up by the trigger. Puta told the police and confirmed in evidence that after Unsal pulled the trigger he lost power. Even then Unsal did not let go of the gun he was holding.
107 Puta said that he now believes that he followed Unsal down to the floor. He did not tell the police this but he had worked it out subsequently. When he told the police that he had shot Unsal, Puta thought he must have done so. He was not sure. He now believes he did not do so. When Unsal was on the floor he already had the wound in the head. Puta said:
"If I did shoot [Unsal] on the floor I can't remember. Possible I did but I can't remember but I think myself when we struggle after he go down, I just followed him and give him one. It's possible I did but I can't say. I'm not an expert. Anything could have happened."
Puta said that only he was there when Unsal was shot.
108 Puta said that he tried to give the police the false impression that Yildirim was pushing Puta forward and inveigling him into an ambush. He had also wrongly told police that two people came from bedroom one because he wanted to make it appear that the attack took place immediately he entered the house. He had also falsely told the police that two people had tackled him into the corner.
109 Puta said that he made a telephone call to a man called Kenny Zecini at the club so he could move Puta's car when he arrived at the club just before he picked up Yildirim and Unsal. At that stage Puta was still planning to talk them out of going back to his house and going to the club at Bankstown. However, they jumped into his car outside a telephone booth and would not listen. They wanted to go to 71 Allum Street. Once in the car Yildirim took charge. Puta insisted that he made it clear to Yildirim and Unsal that there would be problems if they went to 71 Allum Street.
110 Puta said that his girl friend Maria had given Yildirim an automatic Ruger. Puta had seen Yildirim with such a gun before the eruption at 71 Allum Street. When it was put to Puta that he had never previously told the police or said in court that he thought that the Ruger 45 belonged to Yildirim, Puta replied "Looking back I think that's the gun that belonged to [Yildirim] but I'm not one hundred per cent sure." Puta said that he had seen Yildirim with guns "lots of times."
111 Puta stated that he did not see anyone hit Unsal over the head with the butt of a firearm. Puta said that Nitrovic was not in the house when he left to meet Yildirim and Unsal.
112 Puta stated that Yildirim attacked with a knife. He was not defending himself with a knife. Yildirim also had a gun in his hand. Puta said that he did not try to take the gun from Yildirim as he was not close to him. Puta said Unsal was shot by him and nobody else. Puta insisted that he received his gunshot wounds while struggling with Unsal.
113 I have earlier summarised Nitrovic's defence. He did not give evidence at the trial and no evidence was called on his behalf. He pointed to the alleged gaps in the evidence called by the Crown and the material elicited in cross-examination.
114 Bases on Which Cases Went to Jury and Their Verdicts
Yildirim was shot seven times. There was evidence, which the Crown contended was cogent, that most of those shots were fired by Nitrovic. Unsal was shot twice. There was evidence upon which the Crown did not rely that Puta shot him. The Crown contended that it did not have to prove who shot either of the deceased.
115 In each case the judge left the counts of murder to the jury upon the basis that the accused was a party to a joint criminal enterprise to assault the two deceased, that the accused knew that one or more of the parties to that joint enterprise had a gun and realised that in the course of carrying out that criminal enterprise, one or more of the parties to it might shoot at least one of the deceased, intending to kill him or inflict grievous bodily harm upon him, that one or more of the parties to the criminal enterprise did shoot that deceased with that intent and that shooting was unlawful.
116 The judge pointed out that the Crown had to exclude beyond reasonable doubt that Nitrovic shot Yildirim in self-defence and that Puta killed Unsal in self-defence or defence of his co-accused.
117 The judge left the alternative verdicts of manslaughter to the jury on a number of alternate bases, namely provocation, unlawful and dangerous act and contemplation by the accused that one of the parties to the criminal enterprise might fire a gun without intending to kill or inflict grievous bodily harm upon either of the deceased.
118 As to provocation, the judge pointed out that the Crown had to exclude that Nitrovic killed Yildirim under provocation and that Puta killed Unsal under provocation.
119 As to manslaughter by an unlawful and dangerous act the judge pointed out that this arose if the jury were satisfied of all matters previously summarised for murder save that whoever shot the deceased did so with intent to kill or inflict grievous bodily harm upon him. In that event, they had to consider whether the killing was the result of an unlawful and dangerous act.
120 The judge explained that the final variety of manslaughter (contemplation of accused) arose if the jury were satisfied that the accused was a party to a joint criminal enterprise to assault the two deceased, that the accused knew that one or more of the parties to that joint criminal enterprise had a gun, that one or more of the parties to the criminal enterprise did in fact shoot the deceased and that shooting was unlawful, but were not satisfied that the accused realised that one of the parties might fire a gun with the intention of killing at least one of the deceased or inflicting grievous bodily harm upon him. The judge further explained that in such circumstances, if the jury were satisfied that the accused realised that one of the parties to the criminal enterprise might fire a gun but without intending to kill or inflict grievous bodily harm upon either of the deceased, they must find the accused not guilty of murder but guilty of manslaughter.
121 A convenient review of the issues appears in the judge's remarks upon sentence, namely:
"An adequate explanation of [the jury's] verdicts in respect of each accused is that they were satisfied that he was a party to the assault and knew of the presence of a gun or guns, but were not satisfied that he contemplated the use of a gun with the intent requisite for murder. In relation to the offenders other than Mr Puta and Mr Nitrovic, it is common ground that that is the factual basis upon which they should be sentenced. As to Mr Puta, that is clearly the basis upon which he faces sentence for the manslaughter of Mr Yildirim but I must deal with the evidence that it was he who shot Mr Unsal. Conversely, in the case of Mr Nitrovic, that is the basis upon which he must be sentenced for the manslaughter of Mr Unsal but I must consider the evidence that it was he who shot Mr Yildirim.
Mr Puta, who was the tenant of the house at Bankstown, told police that he had shot Mr Unsal in self-defence. He claimed that he had arrived at the house to be set upon by a number of men, including Mr Unsal, all of whom were strangers to him. He was shot himself while struggling with Mr Unsal, who had a gun. He managed to wrest the gun from Mr Unsal and he shot him. In evidence at the trial, he admitted that much of what he had told the police about the circumstances surrounding the incident was false but he maintained his account of how it was he came to shoot Mr Unsal.
I find Mr Puta's evidence no more credible than the version he gave to the police. That he himself was shot there is no doubt, but I am unable to say by whom or in what circumstances. Certainly, I could not conclude that it was he who shot Mr Unsal. That conclusion is unaffected by further scientific evidence that came to light during the current trial [that of Bikic].
The question whether Mr Yildirim was shot by Mr Nitrovic is not as easily resolved. It is common ground that Mr Yildirim produced a knife when he was set upon, that he struggled with Mr Nitrovic and that he stabbed him several times, inflicting serious wounds. It is also common ground that it was then that Mr Yildirim was shot. The Crown contends that it was Mr Nitrovic who shot him, acting under provocation. Such a finding is open and would be consistent with the jury's verdict. In the circumstances of this case, however, it may be that it would not greatly elevate the culpability of Mr Nitrovic above that of his co-offenders: cf R v Isaacs (1997) 41 NSWLR 374 at 381.
Certainly, there is a body of evidence to support the Crown's contention. Witness Two [May] did not refer to Mr Nitrovic by name, and I rejected evidence of his identification of Mr Nitrovic from photographs. However, it was the Crown case that his description of one of the men was such that it could not have been anyone else. Before the ambush, according to Witness Two, that man was in possession of a gun which could have been a .45 Ruger semi-automatic pistol. Such a gun was later found in a nearby street and there is no doubt that that weapon had been used to shoot Mr Yildirim. More importantly, Witness One, [Mullany] who knew Mr Nitrovic, gave evidence of seeing him shooting Mr Yildirim. Some of the physical and scientific evidence, which I need not recite, was consistent with his having done so.
On the other hand, Witness Two's description of the man said to be Nitrovic was unsatisfactory for reasons exposed during the trial. Of the two indemnified witnesses, I found Witness One the less impressive. Much of his account of the manner in which he saw Mr Yildirim shot is difficult to reconcile with the post-mortem findings and the ballistic evidence. I have provided only the barest summary of the evidence bearing on this question and the detailed arguments of counsel about it in the sentence proceedings. I have given the matter careful consideration but, at the end of the day, I am not satisfied to the requisite degree that it was Mr Nitrovic who shot Mr Yildirim.
Accordingly, all six offenders stand for sentence for manslaughter on the same legal basis. I am satisfied that the group was in possession of more than one gun and, for the purpose of sentence, it is not necessary to determine how many. That said, five guns were found either in the house or in the vicinity. Three of them had been fired. Another had clearly been brought to the house by Mr Unsal but it does not appear that it had been fired. There is no satisfactory evidence that Mr Yildirim had a gun. In the course of the ambush both Mr Unsal and Mr Yildirim were struck on the head by the butt of a gun, but I cannot say by whom."
122 The judge further said:
There was evidence, which I do not find satisfactory, that the reason for the ambush was retaliation against the deceased for threats that they made to Mr Nitrovic or, possibly, the man now on trial. That may be so, although I find it a somewhat banal motivation for such an elaborate undertaking. This also is a matter about which one can do no more than speculate. I approach the sentence of the offenders upon the basis that there is insufficient evidence to establish the motive for the attack.
These matters are important, given that the gravamen of these crimes is the participation of each of the offenders in an assault knowing that at least one of his companions was armed with a gun. In submissions on sentence, considerable attention was devoted to the role of each offender in the ambush and the extent of his involvement, if any, in the planning and direction of it. I am indebted to all counsel for their careful analysis of the evidence bearing upon this matter. Upon reflection, however, I doubt that very much turns on it for the purpose of determining each offender's culpability for the manslaughter of the two deceased. I might add that, although it was common ground that Mr Nanai's role was subsidiary, it is difficult to arrive at any conclusion beyond reasonable doubt about the participation of the other men. Of itself, this is not a matter which would justify differential treatment of the offenders."However that may be, I could not conclude that the decision to carry guns was made prior to the arrival of the men at the house. Equally, I can make no finding about who made that decision or who, in fact, had the weapons. I have already dealt with evidence that Mr Puta and Mr Nitrovic fired guns. Witness One testified that he had seen Mr Mackic and Mr Oldham in possession of guns immediately after the incident. This evidence was tested thoroughly at the trial and it also was found wanting.
123 Nanai's Appeal
As earlier appears, Nanai's sole ground of appeal was that the verdict was unreasonable and cannot be supported, having regard to the evidence. That ground rested principally on some allegedly important differences between the evidence of Mullany and May as to what happened inside 71 Allum Street, Bankstown. Reliance was also placed on the limitations of their roles; they were there for the purposes of physical intimidation but not to use guns or to countenance the use of guns. Nanai had no knowledge of the possible use of guns. Unfortunately an assessment of this ground involves repetition of some of the evidence.
124 Both Mullany and May had Nanai going to the back room at the 777 Coffee Shop where Curry handed out money to his recruits. They also had him travelling in a car with Mullany to Newtown, Marrickville and Bankstown and entering 71 Allum Street. Mullany had Nanai and May sitting beside him on the lounge and Oldham, Mackic and Nitrovic standing over by a brown cabinet near the wall. Bikic and Puta were standing over near the dining table. Mullany said that he did not hear the terms of the conversation at that stage, although there was plenty of conversation taking place in the living area.
125 Mullany said that at one stage he saw someone "pull out from a green army kind of bag what looked like a bag of shells, bullets." This bag was on top of the cabinet. The box was a small card box which had the top taken off. Mullany agreed in cross-examination that he only saw the box when he turned around and had a quick glimpse over his shoulder. His view of the box lasted a matter of seconds. Nanai submitted that this did not mean that Nanai was aware of the box of ammunition.
126 Nanai pointed out that it was about the time of the ammunition being produced that firearms were handed around. Mullany saw none of this, nor did he hear anything of it. Nanai was sitting with him. Nanai's evidence was that he neither saw nor heard anything of this. It was submitted that there was insufficient evidence to establish that Nanai had any knowledge of firearms prior to the first shot being fired. There was evidence that Nanai knew of the plan to assault the deceased, but no more.
127 Mullaney said that everyone remained pretty much in the same position except that Curry came over and spoke to them (Mullany, May and Nanai). Curry said "I want this done quickly and quietly because of the neighbours. Once they're on the ground you three walk out of the door calmly." Mullany said that about this time Mackic came over. He had some nylon rope in his hands and said. "Gag their mouths and tie their hands." Mackic graphically demonstrated with the rope by placing it around his mouth with clenched fists on either side, holding the rope. Mackic handed each of Mullany, May and Nanai a piece of the rope about 60cm long. A bit later on one of the other men stated, "Gag them and tie their hands."
128 Mullany said that Curry also said to them "Nance (Nanai) and Mark are to take the first guy when he enters the hallway, the others will get them from the front". About that time they walked to bedroom 3 where Nanai and May were to be stationed. Nanai and May were just inside the bedroom. Mullany was standing at the doorway and Curry was standing next to him in the hallway. Mullany said, "You'll have to take the first guy once he gets past the doorway because if they get (him), before he got to the doorway the second guy would be alerted to that."
129 Mullany gave evidence of waiting in bedroom 2 until the two deceased entered the house. As he came out he looked towards the living area, being the direction from which the sound was coming. He saw Nanai behind one of the deceased with his arms underneath those of the deceased. May was also wrestling with him. There was a struggle. Mullany noticed that Nanai had blood on his shoulder.
130 Mullany said in cross-examination that while he was there to intimidate the victims and to participate in a strong show of force and threatening behaviour, he did not believe that anyone was to be physically harmed and he did not hear anything about anyone being shot. He was not part of any agreement to use guns or which contemplated the use of guns. It was submitted that Nanai was not part of any agreement to use guns or any enterprise which contemplated the use of guns.
131 May located Mullany, Nanai and himself in a different part of the living area. He said that they were sitting around the dining table. Nanai and he were on the western side of the table with Nanai closer to the lounge and cabinet. Mullany was on the eastern side of the table. From his position he had a good view of the cabinet and the lounge. Nanai also had a good view from where he was sitting. May's view may have been partially obstructed by Nanai. According to May, Bikic was sitting on the lounge and the others were standing behind the lounge. The men in the lounge area were having a conversation to the exclusion of Mullany, Nanai and May.
132 May overheard Puta say pretty loudly he "didn't want no shooting, no guns." May definitely saw two guns and he thought that he saw three guns. They were right across from them on the other side of the room. There was a .22 gun or a cut-off .22 gun or something like that and a red handled automatic pistol. He thought that there was a revolver but he was not quite sure about that. The other men were milling around the guns. May said that Nitrovic, who had the red automatic, came over and spoke to them. Nitrovic said that he had been threatened and wanted them to hold the deceased as he was going to pay them back. Nitrovic said there would be no shooting. The only reason they had guns was that the deceased had guns. They would only shoot if the deceased shoot first. Nitrovic was standing in front of them between Nanai and Mullany.
133 May gave evidence of Nanai and him being in bedroom 3 and coming out when they heard the ruckus. May said that Nanai came out first and that when he came out he saw fighting in the hallway. He grabbed the nearest person. Then he heard shots. He released the person he was holding and ran outside.
134 May said he understood that two men were coming to the house for a meeting to resolve a dispute, He did not understand that anyone was going to be killed. He would not have gone if he had known there was to be an armed conflict.
135 May said that it was either shortly before or after he and Nanai walked into bedroom 3 that they were given instructions by the younger gentleman (Nitrovic) to this effect, "There is nothing to worry about. There is two guys coming down. The big guy is the first. One you've grabbed him you've got nothing to worry about. All we want you to do is to get youse to hold him there." May did not believe he was there to shoot someone.
136 Nanai attached importance to this evidence of May (T1391):
"Q. I want to suggest to you at the time you became aware of the guns and the milling around, that Mr Nanai had his back to that activity involving the milling around and the guns, what do you say?
A. It could have been, yes.Q. I put it to you it wasn't just 'could' it was the situation, that Mr Nanai had his back and was turned away from the area where the weapons were? You have said 'it could have been'. I want to put it a little higher and suggest to you in fact Mr Nanai had his back to this activity and was therefore not in a position to see the guns?
A. I don’t know what he saw or not saw. Yes, it's right , it would be that way, yes.Q. I am not asking you to speculate about what he saw but his physical position, do you understand that?
A. Yes.Q. If he was facing the gun the likelihood is he would see it, if he had his back to the gun the likelihood is he did not see it?
A. YesQ. Indeed, just to refresh your memory, you were asked questions on this subject before the Magistrate at the committal proceeding, the preliminary hearing, do you remember, and this is on 30 March last year page 13 and following. You were asked this question at page 14 third question from the top.Q When you became aware of the gun and this just milling around, I want to suggest to you Mr Nanai, wherever he was, had his back to that activity?
A. Yes.
'Q. As far as you could see Nance, that is Mr Nanai … was unaware that the guns were being handed out?'
And the answer attributed to you was:
'A. Yes.'
A. If I must have said it, yes."
and
Q. The other thing I want to refer to is this: It is your evidence in summary, is it not, that the instructions that were given to you as to what you are to do or not to do they were not given at the 777 Club, not given in the car on he way to Bankstown, but given in the house and Allum Street?"Q. It follows from the answers you have just given and the answers that you gave here and the answers you gave to the magistrate at the committal in order to see the weapon Mr Nanai would have to turn around?
A. Yes
A. Yes."
137 May estimated that it was about 10 to 15 minutes before the first knock at the door announcing the arrival of the victims that he was first given instructions.
138 It is puzzling that Mullany and May should give different versions as to where they and Nanai were sitting. If they were sitting on the lounge it is possible that Nanai may not have seen the ammunition. There are other difficulties. If the three men were sitting at the dining table it is not easy to accept that Mullany and Nanai did not see the guns being distributed. For such lack of sighting to occur both of them would have had to have their chairs facing away from the lounge and cabinet and their backs to the lounge and cabinet. The position of the table and the chairs makes this unlikely.
139 Nanai submitted that the Crown relied on the evidence of Mullany as being as truthful and accurate as could be expected under the circumstances. Mullany's stated belief was that he was to be part of a plan to assault the two deceased when they came to the house. However, after their arrival guns were produced and passed around. Mullany says he saw none of this. Nanai contended that there was no reason to dispute this as Mullany and Nanai were extras who were there to provide extra muscle. They were not part of the core group and were excluded from most of the conversation between members of the core group at the house. Mullany only saw the box of ammunition as a result of glancing over his shoulder. Mullany had no indication that anyone may be shot or that some of the men were to have firearms. Nanai was in no different position.
140 Nanai submitted that the Crown also relied, within reason, on the truth and accuracy of May's evidence and that that differed from Mullany's evidence on the important point of May seeing guns and hearing conversations between the members of the core group about guns. This conversation did not involve the three extras. Nanai submitted that just because May saw and heard talk of guns this did not mean Mullany did. Nor did it mean that Nanai heard such talk. It was submitted that there was no evidence that he did. If Nanai did not know of the presence of guns and contemplate the use of them, he was not guilty of anything as the judge directed the jury. The jury's verdict reveals that they did not accept that Nanai did not know of the presence of guns and did not contemplate their use.
141 Nanai submitted that even if the evidence of Mullany and May was accepted as to him being paid money at the 777 coffee shop the purpose of them being present was to engage in a joint enterprise to assault the two deceased. It was submitted that there was no evidence of Nanai being involved in any other enterprise and no evidence that Nanai knew of the existence of guns or their intended use. The Crown case was that guns were not mentioned until all the accused were at the house. Nanai submitted that at the house Mullany, May and he were excluded from the conversation which took place between the others. Nanai was in no different position to Mullany who saw no guns and heard nothing about them, only seeing a small box of ammunition when he glanced over his shoulder. There was no evidence that Nanai glanced over his shoulder and saw the box of ammunition.
142 Nanai reiterated this instruction of the judge:
"I remind you, the central issue in all cases is that earlier on, did any of them know about the presence of guns and contemplate the use of them. I remind you that if, as to any accused, you are not satisfied of that, that's the end of the case, he is not guilty of anything."
Nanai submitted that the jury could not have harkened to that direction of the judge and his extensive directions on manslaughter.
143 As often happens in cases such as these none of the accused's counsel addressed on manslaughter. Nanai submitted that the verdict was not one, which in accordance with the judge's directions could reasonably be supported on the evidence. He submitted that when the nature and quality of the evidence was assessed, and giving due weight to the advantage of the jury in seeing and hearing the witnesses, the Court would conclude that a jury, properly instructed ought to have entertained a reasonable doubt as to the guilt of the appellant: M v The Queen (1994) 181 CLR 487 at 493-494.
144 The Crown pointed out that counsel acting for Puta in cross-examining May elicited much of what was in May's original statement to the police together with the fact that things would have been freshest in his mind at that time.
145 May said that while in the house a young man (probably Nitrovic) had approached him and told him (Mullany and Nanai being with him) that he (Nitrovic) had been threatened with a gun and they wanted them (May, Mullany and Nanai) to hold two men so they could tie them up and teach them a lesson. The two men were killers or hit men. May then said that someone next handed out handguns (T1406).
146 May was next taken to his second statement to the police by counsel for Puta and May's description of what took place when the young man (probably Nitrovic) came to him, Mullany and Nanai. May confirmed that immediately after the young man told him, Mullany and Nanai of the threats received and what he wanted them to do when the two men arrived, the guns were handed out. The young man warned the trio that the big man who was coming would have a gun.
214 As to Ground 1, the Crown pointed out that where a trial judge has refused an application to discharge a jury and the accused has been convicted, the appeal then brought to this Court is not against the failure to discharge the jury but against the conviction: Maric v The Queen (1978) 52 ALJR 631. As I understand it Nitrovic contends that the judge should not have admitted the challenged evidence or at the very least withdrawn that evidence from the jury. Alternatively the conviction cannot be allowed to stand because of the unfairly prejudicial effect of that evidence which took Nitrovic by surprise and which he was unable to meet.
215 Nitrovic submitted that May's evidence was critical to the crucial question of Nitrovic's knowledge that one or more of the parties to the joint criminal enterprise had a gun before Yildirim and Unsal were brought to 71 Allum Street.
216 The background is as follows. Before May gave evidence questions were raised and detailed submissions were made as to what identification evidence May should be permitted to give as to Nitrovic. The judge rejected the evidence of the photographic identification of Nitrovic by May together with evidence from May that he had encounters with Nitrovic before and after 5 April 1998. The judge gave these reasons:
"The crucial evidence is the identification from photographs on 27 November 1998. That identification was anything but confident in evidence. In the absence of the jury in this Court, the witness maintained that he was not then, as he put it, one hundred per cent sure about it. This is despite his assertion, made for the first time very recently, that he had met Mr Nitrovic before 5 April 1998 and seen him on yet another occasion between that date and the date of the identification.
The identification is weakened by the displacement effect arising from the witness seeing another video a few days before in which there happened to be a photograph, albeit one taken at a different time, of Mr Nitrovic. That displacement effect was very likely exacerbated by the meeting which he asserted occurred between 5 April and 27 November 1998.
In addition, it does appear that the identification has been contaminated by information which the witness received from various sources between April and November 1998 about Mr Nitrovic and about what was said to be his involvement. Some of this material is highly prejudicial to Mr Nitrovic.
As I have said, he now asserts that he met Mr Nitrovic before 5 April 1998 and saw him again between that date and November of the same year. That assertion, however, was made for the first time as late at ( sic ) 9 March 2000. He made no such suggestion in statements to the police or in sworn evidence at the committal proceedings.
To explore why he was so tardy in revealing this prior knowledge of Mr Nitrovic would necessarily involve the introduction of irrelevant material highly prejudicial to Mr Nitrovic.
I have considered whether the evidence of his precise knowledge of Mr Nitrovic could be severed, as it were, so that only the evidence of the photographic identification would be led. However, I consider that to be a most unsatisfactory and highly artificial course. The reality is that to explore the reliability of the photographic identification would inevitably involve evidence of his prior knowledge of Mr Nitrovic.
Accordingly, I am satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. It is for that reason I reject it."In summary, then, I consider the evidence as a whole most unsatisfactory and the testing of it could not avoid the introduction of prejudicial material.
Thereafter May gave his evidence in the presence of the jury.
217 At an early stage of his evidence in chief May described what happened in Café 777 when he, Curry, Mullany and Nanai arrived there. Amongst the men at the Café was a man whom May described, "he was taller than me, younger than the rest, he was a little bigger than medium build." His hair was brownish and his skin colour was fair. May could not say what clothes this younger man was wearing (T1174-75).
218 May said that after Mullany and Nanai had returned from the back room they had a conversation for two or three minutes. The younger man then told them to stand up and they did so. May said that this younger man had "a goatee", was "a little bit balding on top" but May was not quite sure how long the younger man's hair was (T1182). No objection was taken to that evidence being led. After describing the journey from Café 777 to 71 Allum Street May said that the people at 71 Allum Street were the same people who were at Café 777. He mentioned the "younger man with the goatee beard" as being there. He also referred to the younger man with the goatee having the red handled automatic gun and coming over and speaking to them and giving instructions (as earlier mentioned). May described the younger man with the goatee as playing with or loading his gun. May described the fighting which occurred. May said that after the shots he saw the younger man in the hallway and that he appeared to have been shot and injured. This evidence as to the role of the younger man with the goatee was also given without objection. May spoke of his leaving 71 Allum Street and others doing so, how he ran to Bankstown Square, caught a taxi to Bass Hill and then had his wife collect him.
219 Towards the end of May's evidence in chief counsel for Nitrovic applied to have the jury discharged as against him, supporting his application with detailed submissions. In dealing with that application the judge noted that when May was asked at the trial to describe the younger man, May provided a description considerably more detailed than he ever had before, including the assertion that the man had receding hair and a goatee beard at the relevant time. The evidence was not objected to but it was probably unexpected. That description certainly pointed to Nitrovic. May had had many opportunities to furnish the description which he gave in evidence as he had made several statements to the police and been engaged in "walkarounds".
220 Counsel for Nitrovic sought a discharge of the jury on the basis that to properly test that evidence would involve an examination of May's account of his prior association with Nitrovic and the revelation of the very prejudicial material to which the judge had earlier referred. The judge gave these reasons for rejecting the application for the discharge of the jury:
"It is true that to test the evidence of that more detailed description could involve a venture into that prejudicial area. However, it need not necessarily do so and it would be a matter for counsel to make a tactical decision whether it was advisable to do so. [Counsel] had the advantage of the evidence that the witness had never previously given such a detailed description. I might add, in fact, that he has since cross-examined the witness, in my view to considerable effect, with the use of that material.
In my view what occurred was simply one of those unexpected developments which do occur from time to time in criminal trials, but it was not such as to warrant the significant step of discharging the jury in respect of Mr Nitrovic."
221 These reasons are not fairly open to attack. The judge's discretion has not been shown to have been erroneously exercised. It was Nitrovic's case that the younger man described by May was not him but another person or at the least the jury would have a doubt that the younger man was Nitrovic.
222 The judge at SU73-74 warned the jury thus:
"To the police, you will recall, in the walk around interview, at the committal, and indeed in some evidence taken in your absence in this Court early in the trial, it seems that Mr May never asserted that the younger man had receding hair and a goatee beard. Those additional details of description emerged only for the first time in his evidence before you here. Apparently that is consistent with Mr Nitrovic's appearance at the time. In this respect you have the evidence, the photograph Ex 163, taken in February 1998, which does show him with a goatee beard and receding hair.
There is obviously a danger of unconsciously transposing an image Mr May had at the time to fit someone he now sees in this Court as one of the accused. It is for that reason you should look at that evidence given by Mr May in Court and scrutinise it with care. Pressed about that Mr May said: Well, he had never been asked to give a detailed description before. To that [counsel] says: Do you really think that likely, don't you think he would have been pressed to give the most detailed description he could when speaking to the police."Nevertheless, ladies and gentleman, you should treat that evidence given here for the first time, that that younger man had a goatee and receding hair, and examine that carefully. Mr May had never said that before in evidence, never given that description in detail before. As you look at Mr Nitrovic now, he does not have a goatee but in this respect I remind you there were other men in the house that night who did. Looking at Mr Nitrovic now, he does have receding hair.
In the surrounding passages the judge put the case and contentions of Nitrovic fully and favourably.
223 The submission that the warning given by the judge was not sufficient to dispel any potential prejudice must be rejected. There has been no miscarriage of justice.
224 The Crown drew attention to the evidence of Mullany. He testified that he had met a person he knew as "Steve" prior to 5 April 1998. He saw Steve at the 777 Café. He gave evidence as to what Steve did and it was obvious that he was talking about Nitrovic. Mullany described following Steve from the 777 Café into a red Ford Falcon and thereafter being in a group with him at Newtown, Marrickville and Bankstown. Mullany named Nitrovic as one of the group who walked from Nitrovic's parked car to 71 Allum Street. Further, Mullany referred to the presence of Nitrovic in 71 Allum Street on several occasions. Mullany also described "Steve" as struggling with the second man and how the second man had a knife which he was swinging wildly with "Steve" yelling, "He's got a knife". "Steve" had appeared badly cut and was covered in blood and bent over (T480-1). Mullany referred to hearing a gunshot and the second man slumping to the ground (T482) and to Steve being crouched down holding his stomach and firing at the man on the ground with a handgun (T483). The red Falcon was registered in Nitrovic's name and he was given medical treatment for wounds inflicted with a sharp object.
225 Whatever criticisms could be made of May's evidence as to Nitrovic, the evidence of Mullany (and the evidence supporting that of Mullany) left no doubt as to Nitrovic's role at 71 Allum Street and prior thereto.
226 In his oral submissions counsel for Nitrovic stated that he did not rely on Ground 1 separately but relied on the submissions on that ground in support of Ground 4, namely, that the verdict was unreasonable and not supported by the evidence. I have dealt with the matters at length under Ground 1 to demonstrate that there is no substance in the complaints. This will be significant when I deal with Ground 4.
227 Appeal Ground 1 should be rejected.
228 Appeal Grounds 2 and 3 – Erroneous Leaving of Manslaughter
There grounds may be taken together. They and the submissions in support have a substantial similarity to Grounds 2 and 3 in Puta's appeal. Indeed counsel for Nitrovic acknowledged that "in large part the submissions in respect to Nitrovic are in common with the submissions in respect to Mr Puta."
229 Again it was understood that these grounds were intended to raise three points:
(a) the judge should not have directed the jury that it was open to them to convict Nitrovic of manslaughter on the basis of provocation as to the count concerning the killing of Unsal.
(c) There was no basis for leaving manslaughter to the jury on the basis that a participant in the joint criminal enterprise to assault the deceased knew of the presence of a gun or guns but were not satisfied that he contemplated the use of a gun with the requisite intent for murder.(b) There was no basis for leaving to the jury the alternative verdict of manslaughter on the basis of a "dangerous and unlawful act".
230 Nitrovic attached importance to his having asked the judge not to leave provocation to the jury. Nitrovic contended that there was no evidence to support such a finding. Reliance had been placed on "self defence" which the Crown had to negate.
231 On a trial of murder the judge should direct a jury that a verdict of manslaughter is open to them if there is a basis in the evidence for such a verdict: Markby (1978) 140 CLR 108 at 113. This applies even if counsel have expressly disavowed such a verdict: Pemble (1971) 124 CLR 107 at 118.
232 In dealing with Puta's appeal I have set out the reasons why it was correct for the judge to have left provocation in the way he did. I shall not repeat those reasons. The judge did not err.
233 As to manslaughter by an unlawful and dangerous act it was open to the jury to conclude, if they were not satisfied beyond reasonable doubt who the shooters were – and such a lack of satisfaction was reasonable – that they could not exclude the possibility that the deceased were shot by some person or persons firing wildly without the specific intent to establish murder. A fast moving situation existed in which chaos, mayhem and panic prevailed.
234 The judge correctly crystallised the position with the direction he gave at SU30-31 quoted earlier in Puta's appeal. I adopt the reasons earlier given on this point in Puta's appeal.
235 I turn to the variety of manslaughter involving knowledge of the presence of a gun or guns and contemplation by Nitrovic that one of the parties to the enterprise might fire a gun but without intending to kill or inflict grievous bodily harm upon either of the deceased. There was a reasonable possibility on the evidence that some accused, even though they may have realised that one of the parties might fire a gun, did not appreciate that such firing would be done with intent to kill or inflict grievous bodily harm. If the jury were not satisfied who the shooters were, such an approach would be permissible, and indeed correct, as to all accused. This was a joint enterprise case. I adopt the reasons given as to this ground in Puta's appeal. The judge correctly gave the challenged directions.
236 Appeal Grounds 2 and 3 should be rejected.
237 As to Ground 4, namely, that the verdicts were unreasonable and not supported by the evidence, Nitrovic primarily relied on the matters advanced in support of Grounds 1, 2 and 3. Nitrovic argued that May's evidence as to his presence and his role at 71 Allum Street was seriously flawed; May's evidence describing Nitrovic as the younger man with the goatee should not have been admitted (and presumably withdrawn once its effect was appreciated by his counsel)
238 In his oral submissions counsel stressed that Sgt Kelly spent some time with May on 24 November 1998 taking a further statement. Amongst other things, Sgt Kelly was endeavouring to clarify with May the descriptions of certain individuals and to extract the best possible description of them. He did not recall asking May specifically whether certain individuals had any facial hair. Counsel emphasised that Mullany had agreed that it was a possibility that Nitrovic had left 71 Allum Street shortly after arriving and returned a little later. There was some suggestion in other evidence that he went to shift a car. That was designed to increase the possibility that it was another person who approached May, Mullany and Nanai..
239 Mullany's evidence provides significant support for the view that Nitrovic was a major player in the events of 5 April 1998 at the 777 Café, on the trip to Bankstown and in 71 Allum Street, even allowing for the criticisms which have been made of his evidence. He was a participant in the joint enterprise.
240 A detailed examination of the evidence leads to the conclusion that the verdicts against Nitrovic were amply supported by the evidence. Applying M v The Queen, supra, it was reasonably open to the jury to be satisfied beyond reasonable doubt that Nitrovic was guilty of manslaughter. The verdicts were not unreasonable. This was a case in which the jury had an extended opportunity to assess the witnesses and the truth of what each was saying. Nitrovic's case was put very fully to the jury, including his criticisms of the Crown evidence. Appeal Ground 4 should be rejected.
241 Fresh or New Evidence
Nitrovic relied on the evidence of Ms V Beilby earlier mentioned and given at Bikic's trial. Again I find it unnecessary to determine whether the evidence is fresh evidence or new evidence,
242 While not overlooking all the DNA which was found on various items of clothing and that DNA from Nitrovic was found on the jeans and the shoes, this evidence would have had no impact upon the verdicts of the juries. I adopt the reasons given on this aspect in Puta's appeal. In the melee which occurred many of the accused would have had some form of contact with one or both the deceased.
243 This Ground of appeal should be rejected.
244 This appeal by Nitrovic against his conviction should be dismissed.
245 Appeal Against Sentence - Nitrovic
Nitrovic was sentenced on Count 1 (the manslaughter of Yildirim) to imprisonment for 9 years commencing on 13 September 2000, with a non-parole period of 5 years and on Count 2 (the manslaughter of Unsal) to imprisonment for 9 years commencing on 13 September 2001 with a non-parole period of 5 years. The effective sentence was thus imprisonment for 10 years with a non-parole period of 6 years. Puta had received an effective a sentence of imprisonment of 11 years with a non-parole period of 7 years.
246 I have earlier set out the basis on which Nitrovic was sentenced. He was born on 26 June 1967. There was one matter of consequence in his prior criminal record. In 1994 he was sentenced to 100 hours community service for an assault occasioning actual bodily harm. The victim was his first wife. He was also placed on recognizances for offences arising from his unlawful possession of some firearms, which were discovered by police who attended his home in response to his wife's complaint. This led to him being treated by Dr W L Walker, psychologist and Dr T Clark, psychiatrist.
247 The judge summarised the subjective factors thus:
"Mr Nitrovic is of Serbian origin, coming to this country with his parents at the age of two. He had a younger brother, who tragically died from epilepsy during the period he was in custody awaiting sentence. His family life was very disturbed. His father was violent and given to excessive drinking and, although his mother was very attached to her sons, there was no discipline in the home. The atmosphere, as Dr Walker described it in her report, was one of 'disorganisation, resentment and fear'. Despite being intellectually gifted, he did not give his schooling the attention it required and he left school at the age of sixteen, having attained his School Certificate. At the same age his father threw him out of the home and he lived in Kings Cross, working at clubs in the area. While he was successful in that employment, the work was stressful and the people he mixed with did little to develop his faith in humanity.
He married his first wife when he was eighteen years of age and they had two daughters, who are now teenagers. He worked hard and for increasingly long hours, to provide materially for his wife. She remained at home, which conformed to his conservative views about the role of a woman in marriage but which stifled her. Although there was affection between them and they were both devoted to their daughters, the relationship became strained. Neither had the maturity and ability to communicate as necessary to deal with the situation. He had difficulty controlling his temper, and he became possessive of her and fearful that she was being unfaithful to him. It was this belief, apparently unfounded, which led to the assault upon her to which I have referred. In that same year, 1994, their marriage came to an end.
Between 1994 and 1995 Mr Nitrovic undertook psychotherapy with Dr Walker. When she first saw him she referred him to Dr Clark, who diagnosed dysthymia (chronic low grade depression) and prescribed appropriate medication. He committed himself to therapy with Dr Walker at that time and she observed him to make considerable progress. He had a relationship with another woman, which did not endure but which led to the birth of a son. He continued to support that boy and his two daughters, both emotionally and financially. It is clear that he has always been a hard worker. In more recent years he worked as a foreman with a gyprock contractor, who has provided a reference which speaks very highly of him.
Mr Nitrovic commenced his relationship with his present wife, Suzanne, in 1997 and they married in the following year. They have a son, born on 29 June 2000. Sadly, the child was not yet three months old when Mr Nitrovic was taken into custody on 13 September 2000, following the jury's verdicts. Suzanne Nitrovic is an intelligent and capable woman, who remains supportive of her husband and visits him regularly with their son.
Character references tendered on his behalf describe him as a person of integrity and responsibility, who is generous and considerate of others. He has received very positive reports from prison officers since he has been in custody. It appears that he is a respected member of the Inmate Development Committee at the prison where he is housed and he has been involved in a program to assist young people to avoid deterioration into a criminal lifestyle.
It is appropriate to have regard to the fact that Mr Nitrovic was seriously injured in the course of this incident, although I do not understand him to have suffered any permanent disability: cf R v Barci (1994) 76 A Crim R 103 at 107, 110-111. Despite those injuries, he was engaged in strenuous physical work with the gyprock company while on bail awaiting trial. He was also accepted for University entrance, even though he had not completed his schooling, but financial constraints prevented him from pursuing any course of study. In 1997 Suzanne Nitrovic's brother, who was a good friend of his, was murdered. This was most distressing for him as, of course, was the more recent death of his own brother.
Since being in custody he has again seen Dr Clark, who has provided a recent report to the effect that he still suffers from dysthymia. After his arrest in 1998 he resumed psychotherapy with Dr Walker, who has also provided a recent report and who gave oral evidence in the sentence proceedings. I should record that I do not accept a submission by his counsel that this material raises the principles relating to general deterrence considered by Gleeson CJ in R v Engert (1995) 84 A Crim R 67.
Mr Nitrovic told Dr Clark that he accepted imprisonment as inevitable and saw it as 'a form of penance'. This suggests a measure of insight into the seriousness of these crimes and a sense of responsibility for the deaths of the victims. Dr Walker's report of 4 December 2000 concludes as follows:
'Zeljko Nitrovic has attended intensive therapy with me 1994 to 1995 and 1998 to 2000. I have observed and documented over this time maturing and personality growth. He has had a focus to his life since marrying Suzana and the birth of their son Steve, despite the stresses and suffering of the murder of a very good friend, being almost killed himself and being on bail for two and a half years. During this time he has done hard physical work despite his significant injuries and has gained university entry despite his lack of education. His prognosis for a law-abiding future is good.'
In June 1998 he was in custody for a little over two weeks before he was released on bail. I have regard to that short period of custody, together with the fact that he was then subject to fairly onerous bail conditions until his trial almost two years later."
248 It was pointed out that Nitrovic completed his community service satisfactorily and that he had not committed any offences between 1994 and 1998. At the times of the 1998 offences he was being treated for a psychiatric and psychological disorder. He was the only offender in that category.
249 Nitrovic submitted that while the judge was correct in acknowledging that Nitrovic was seriously injured, the judge was in error in stating "I do not understand him to have suffered permanent disability." For a period there was a risk that the left arm would have to be amputated. Expert medical intervention, microsurgery and multiple skin grafts over a period of time resulted in the arm being saved. Nitrovic suffers considerable ongoing disability as a result of that injury. The scarring to the leg and arm is extensive. Not all this information was so clearly before the judge.
250 Nitrovic emphasised the rehabilitation which had occurred while he was on bail and after he was gaoled. As submitted, that rehabilitation was meritorious. Nitrovic submitted that it should have been given more consideration. The judge did take it into account.
251 Nitrovic submitted that in the judge's overall analysis he had failed to distinguish sufficiently between the various offenders, their different circumstances and different subjective cases. Consequently, Nitrovic was dealt with more harshly and equally with the other co-offenders except Puta. It was submitted that, with the exception of Nanai, Nitrovic warranted a lesser sentence than the other co-offenders.
252 Nitrovic submitted that the judge ought more carefully and more closely to have discerned and defined the role each offender played in the shooting and deaths of each of the two deceased. I doubt if that was practicable. It was further submitted that the judge should then have sentenced each offender in a discrete and proper proportionate manner, whilst not overlooking the principle of totality and the objective gravity of the offences.
253 Nitrovic relied on the following:
(a) (i) Puta's record was far more extensive than that of Nitrovic. Puta had been sentenced in 1993 to a minimum term of 5 years and an additional term of 2 years for serious drug offences. He was on parole when the subject offences were committed. He had lied to the police and his evidence at his trial was not credible
(iii) Puta played a greater role in the planning and commission.
(ii) Puta had refused to name other people who were involved.
(b) Nanai's non-parole period of 4 years on each offence was one year less than that of Nitrovic and that was not justified. I disagree.
(c) The other offenders received sentences equivalent to that of Nitrovic yet those other offenders did not suffer his ongoing disabilities and had less compelling subjective circumstances.
254 Appeal Against Sentence - Nanai
Nanai was sentenced on count 1 (the manslaughter of Yildirim) to imprisonment for 7½ years commencing on 13 September 2000 with a non-parole period of 4 years and on count 2 (the manslaughter of Unsal) to imprisonment for 7½ years commencing 13 September 2001 with a non-parole period of 4 years. The effective sentence was thus imprisonment for 8½ years with a non parole period of 5 years.
255 The judge made the following findings:
"Mr Nanai was twenty-eight years old at the time of the incident, and is now thirty-one. His only previous conviction is for assault occasioning actual bodily harm in 1995, for which he was placed on a recognizance He was still subject to that recognizance at the time of these offences, although he was at the tail end of it. He gave evidence at the trial of the circumstances of that offence and they do little to discredit him. I attach no significance to it, although the currency of the recognizance cannot be ignored.
Mr Nanai raised his character at the trial and that evidence was supplemented by an impressive body of character evidence called in the sentence proceedings. I heard from his eldest brother, his wife, his employer and two personal friends, one of them also a business associate.
Mr Nanai's origins are somewhat similar to those of Mr Curry. He was born in Western Samoa, the third of seven children. The family migrated to New Zealand when he was very young and he was brought up in Auckland. When he was twelve his father espoused the Jehovah's Witnesses faith and the family pursued a strictly religious lifestyle, which inhibited his social contacts and sporting activities. He was educated in New Zealand to the equivalent of Higher School Certificate standard, and thereafter he completed courses in electronic engineering and computing.In 1989 he came to this country, settling in Sydney. He has worked as a supervisor with a warehouse company in Wetherill Park, as well as pursuing a welding business in partnership at Bungendore, near Canberra. In 1995 he married and his daughter was born in the following year.
He was arrested on 13 November 1998 and was in custody for almost a week. He was then on bail awaiting trial, and throughout the trial, until he was returned to custody after the jury's verdicts on 13 September 2000."A psychiatric report of Dr Johnathon Carne observes, consistently with the other evidence, that Mr Nanai's life 'has revolved around his family and his work'. The oral evidence attests to his devotion to his wife and daughter, and I have no doubt that the relationship will survive the term of imprisonment which he must serve. His employer and his business associate spoke in the highest terms of his industriousness and reliability. He has pursued sporting interests since being in this country, and there is no doubt of his fitness and physical strength. Nevertheless, all the witnesses described him as a gentle man, whom they had never known to be violent. Asked about his temperament, his business associate said that he was 'probably one of the most gentle men I've met in my life'. It is sad, indeed, to see such a fine young man facing sentence for such serious offences.
256 Nanai correctly submitted that he was not in possession of a gun or of any weapon. He was not the person who struck either deceased on the head with the butt of a gun. Nanai emphasised that the judge had found and correctly so, that Nanai's role was subsidiary.
257 It was submitted that when the much lesser role played by Nanai was compared with the roles of the other offenders, the sentences which he received were too severe. Nanai submitted that the judge had not given sufficient consideration to the role played by each other offender and the very subsidiary role played by Nanai in what occurred. He was not involved in any of the planning. He was an extra called in at the last minute to make up the numbers and not taken into the confidence of the principal offenders.
258 Decision
For the criminality involved none of the sentences imposed by the judge were harsh. If anything, they tended to be somewhat lenient. With crimes of the gravity here in question, subjective features, while important, are not the principal factor. Any consideration of the extent of the sentences imposed focuses upon the unlawful killing of the two deceased in a joint attack by a number of men. That was the joint enterprise. Strength of numbers and surprise lay with the offenders. The joint enterprise involved luring the two deceased to 71 Allum Street and ambushing them. Guns were produced and there was always a real likelihood that they would be used. One telling fact is the small confined area within the house. Nitrovic was active in the enterprise and Nanai participated in it. Muscle was an important aspect of it.
259 The judge sufficiently identified the role of each offender and his subjective features. With the taking of two human lives in the circumstances mentioned lesser sentences could not have been imposed. The judge has sufficiently differentiated between the various offenders. The sentences were carefully considered and structured and could not give rise to a justifiable sense of grievance on the part of either Nitrovic or Nanai. I propose the following orders:
260 Arben Puta
Appeal against conviction dismissed.
261 Zeljka Nitrovic
Appeal against conviction dismissed.
Leave to appeal against sentence refused.
262 Satuala Nanai
Appeal against conviction dismissed.
Leave to appeal against sentence refused.
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