R v Murrell [2000] NSWSC 618

New South Wales Supreme Court

CITATION : R v Murrell [2000] NSWSC 618 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70037/99 HEARING DATE(S) : 11-12 April 2000, 17 April-1 May 2000,4 May 2000, 29 June 2000 JUDGMENT DATE : 5 July 2000

PARTIES : Regina v Lloyd Anthony Murrell JUDGMENT OF : Studdert J

B. Smith (Crown) COUNSEL : J. Conomos (Trial) G. Cusack QC (Sentence) Office of the Director of Public Prosecutions (Crown) SOLICITORS : W.R. Ghioni (Trial) Forshaws Neill (Sentence) Listening Devices Act LEGISLATION CITED : Criminal Procedure Act Crimes (Sentencing Procedure) Act DECISION : See para 20

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

STUDDERT J

Wednesday 5 July 2000 070037/99 REGINA v LLOYD ANTHONY MURRELL

SENTENCE

1 HIS HONOUR: On 1 May 2000 the prisoner Lloyd Anthony Murrell was convicted of the murder of Ahmed Homsi who was shot whilst inside his home at Lakemba on 10 November 1997. 2 I heard submissions on sentence on 29 June 2000. On that date Mr Cusack of Queen's Counsel requested that I proceed to sentence this prisoner without waiting for any pre-sentence report, and I accede to that request. 3 The deceased resided with his wife and his young son at 60 Hillard Street, Lakemba and he conducted a service station nearby. On the night of 9 November 1997 the deceased's wife went to bed leaving the deceased watching television in a room towards the back of the house. Mrs Homsi was awakened by a bang and heard a male voice outside the house voicing abuse. Mrs Homsi arose and was near her husband and her bedroom door when there was a further explosion and the deceased collapsed on the floor with wounds that proved to be fatal. Mrs Homsi then heard the sound of a car being driven away at speed. It would seem that the shooting occurred shortly after midnight. 4 It was admitted at the trial that the deceased died as a result of shotgun wounds to his chest and neck. The fatal wounding inflicted included a complete transection of the right carotid artery. 5 The ballistics expert, Sgt Roach, who attended the scene, observed damage to the house, both internal and external, as well as metal fragments inside and outside the home. Fourteen cardboard discs were found at the scene as well as felt wads and many metal fragments. These were consistent with having formerly been components of twelve gauge shot shell, and Sgt Roach, from observations made at the scene, concluded that two charges of SG sized pellets of shot each containing nine pellets of SG had been discharged into the front of the premises. It was his opinion that the first shot had been fired through the front window and the second shot through the front door. The evidence of Sgt Roach was unchallenged and the matters he addressed were established beyond reasonable doubt. 6 Police investigating the fatal shooting became aware of the prisoner's involvement as a result of evidence of conversations recorded by means of a listening device installed in premises at Casula. The device was used after a judge of this court had authorised such use by warrants under s 16 of the Listening Devices Act, 1969. The relevant warrants were issued upon the issuing judge being satisfied that there were reasonable grounds for the belief that the prisoner had committed the crime of armed robbery but, whilst it emerged in evidence that there was an issue as to what the prisoner was heard to say, on the prosecution case the prisoner was heard in June 1998 to make utterances that implicated him in the shooting of the deceased. This involvement the prisoner denied when he was subsequently interviewed by the police and he has persisted in asserting his innocence since that time. 7 On 5 November 1997, a few days before the shooting, a female acquaintance of the prisoner named Stacy Stephens was involved in a motor vehicle accident. The car she was driving collided with and caused damage to a vehicle that was parked in the driveway of the deceased's home. This accident attracted a crowd of local residents and Ms Stephens called the prisoner to come to the scene and to her assistance. This the prisoner did and he became involved in a heated exchange with the young Lebanese man who owned the vehicle. Police officers attended the scene of the accident and the evidence introduced at the trial established, to my mind beyond reasonable doubt, that there were a number of persons who became involved in argument after and arising out of the accident that had occurred. These people included the prisoner. Mr Conomos, appearing for the prisoner at the trial, asked Constable Telfer the following question and received the following response (T180): "Q. And from your experience, and only if you can say, the situation was fairly intimidating, wasn't it? A. Yes, it would have been quite intimidating." 8 The evidence to my mind establishes beyond reasonable doubt that the response I have quoted amounted to an accurate description of the scene. It was the prosecution case that the subsequent visit to the deceased's home on the night of the shooting was motivated by the prisoner's resentment because of what had occurred in Hillard Street on the day of the car accident. 9 The prisoner gave evidence at the trial in which he admitted that he was in Hillard Street, Lakemba when the deceased was shot. He said he went there with another man named "Norm", whom he had known for a couple of years. The prisoner said he and his companion were driven to Hillard Street by Stacy Stephens and left there by her. He said that he went there with Norm for the purpose of stealing the motor vehicle that had been involved in the accident a few days before. In the course of his cross examination (T203) the prisoner said that Norm had no axe to grind with any person living at the house of the deceased. The damaged car was not there so, according to the prisoner, he and Norm then stole another car from a street near Hillard Street with a view to using it to return home. However, before leaving Lakemba the prisoner said that he and Norm decided to check to see if the damaged car was back in Hillard Street. Norm drove into Hillard Street, said the prisoner, and he stopped the stolen vehicle directly across the road from the deceased's home. The prisoner said that Norm got out of the car and "started going berserk, yelling and screaming". The prisoner said he then heard a big bang and saw a flame and then realised Norm had a gun. He said that was the first time he knew Norm had a gun, although he was previously aware that Norm had a nylon carry bag with him from the time they set out to go to Lakemba. The prisoner said he ran to Norm and tried to stop him but was unsuccessful and that Norm fired through the front door. He and Norm then left the scene. The prisoner said that he did not go with his companion for the purpose of discharging the firearm at the deceased's premises, that he himself did not discharge a weapon, and that he did not go to the deceased's premises for the purpose of causing any harm to any one of the occupants. If the prisoner's evidence was to be believed, he did not contemplate the possibility that anyone inside the deceased's house might be harmed. Clearly the jury rejected the prisoner's evidence. 10 It was not the prosecution case that the prisoner fired the fatal shot, or indeed the earlier one. The Crown put the case in two ways: