R v Moosawi [2023] NSWDC 319

District Court New South Wales

Medium Neutral Citation: R v Moosawi [2023] NSWDC 319 Hearing dates: 19 – 20 June 2023, 22 June 2023 Decision date: 12 July 2023 Jurisdiction: Criminal Before: Coleman SC DCJ Decision: The accused is found not guilty of the offence of firing a firearm in a manner likely to endanger yourself, other persons or property. Catchwords: CRIME – Principal judgment – Firearms offences – Fire a firearm in a manner likely to endanger the safety of yourself, other persons or property – Judge-alone trial – Circumstantial Crown case – Not guilty verdict Legislation Cited: Crimes Act 1900 (NSW), s 93G Criminal Procedure Act 1986 (NSW), s 133 Evidence Act 1995 (NSW), ss 165, 191 Cases Cited: Fleming v The Queen (1998) 197 CLR 250 R v Baden-Clay (2016) 258 CLR 308 Category: Principal judgment Parties: Director for Public Prosecutions (NSW) (Crown) Sayed Mohammed Moosawi (Accused) Representation: Counsel: Mr A Isaacs (Crown) Mr D Pace (Accused)

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

JUDGMENT

Offence and Background 1. The accused stands indicted that between 27 September 2021 and 28 September 2021, at Merrylands, he fired a firearm in a manner likely to endanger the safety of himself or other persons or property, being an offence under s 93G(1) of the Crimes Act 1900 (NSW). 2. The allegation the subject of the indictment arises from events the Crown alleges occurred at premises at 226 William Street, Merrylands ("the Lahood Premises") on the night of 27 September 2021. The Crown case is that sometime before 8.15pm that night, there was an exchange of gunfire between a person who was in a white Mazda CX-5 on the road outside the Lahood Premises and a person who was inside the boundary fence of the premises. It is the Crown case that the person who fired at the car from inside the Lahood Premises was the accused. 3. The curious feature of this case is that despite there being evidence of multiple shots exchanged between the respective shooters that night, there was no report of the matter to the police by either any of the persons who were at the Lahood Premises or any neighbours or members of the public. The shooting came to light by way of police intelligence and telephone intercepts of the accused's mobile phone undertaken pursuant to a Telecommunications Service Warrant. 4. By reason of things recorded in calls to and from the accused's phone on 28 September 2021 and other intelligence, police attended the Lahood Premises to conduct a check on Jabour Lahood ("Jabba"). He lived at the premises. He was also subject to bail for other matters. 5. The police noticed impact damage to two fences consistent with damage having been made by projectiles such as bullets. Police formed the view that a firearm may have been discharged at the site. A warrant for the search of the Lahood Premises was obtained and investigating and crime scene officers made findings which led to the conclusion that there was, indeed, a weapon (or weapons) discharged there. 6. The Crown case is circumstantial. There were no witnesses to the events - at least none who gave evidence. The Crown relies on inferences and conclusions it says can and should be drawn to the evidence as a whole, including telephone intercepts. It says the accused made admissions which have been recorded in the telephone intercepts. 7. The trial was conducted as a judge-alone trial before me. After giving myself some general directions, I will move onto the evidential and factual findings and then consider the Crown case in more detail and the defence response.