R v Jamal [2013] NSWDC 20

District Court New South Wales

Medium Neutral Citation: R v Jamal [2013] NSWDC 20 Hearing dates: 21, 22, 25 - 28/02/2013; 1, 4 - 8/03/2013 Decision date: 08 March 2013 Jurisdiction: Criminal Before: Judge Norrish QC Decision: Not guilty Catchwords: CRIMINAL LAW - judge alone trial, reliability of indemnified witnesses, witnesses criminally concerned, informers. Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Fleming v The Queen (1998) 197 CLR 250 Category: Principal judgment Parties: Director of Public Prosecutions Saleh Jamal - accused Representation: Ms K Shead - Director of Public Prosecutions Mr R Driels - accused Director of Public Prosecutions Bannisters Lawyers - accused File Number(s): 2007/14844

Judgment

R v SALEH JAMAL

Introduction 1The accused pleaded "not guilty" on 21 February 2013 to a charge preferred on indictment alleging that he: "On the 1st November 1998, at Lakemba in the State of New South Wales did fire a firearm in or near a public place, being Gillies Street, Lakemba." 2The trial was one by "Judge alone" pursuant to ss 132-133 Criminal Procedure Act 1986. 3The charge is concerned with a shooting at and around the Lakemba Police Station in Gillies Street Lakemba in the early hours of 1 November 1998. It is agreed between the parties that this event involved the participation of a number of people. The crime was a very violent crime that struck at civil order, challenged law enforcement agencies, and potentially put lives at risk. The details of the shooting incident from eye witnesses are in the 'Admitted Facts' tendered by the prosecution set out below. 4The Crown case against this accused is that he was not one of those who discharged firearms, but was part of a 'joint criminal enterprise' to commit the crime in that he was involved in preparations for it, he assisted the execution of the crime, perhaps by monitoring a police scanner, waiting nearby to the shooting ready to assist, knowing that the crime had been committed and by assisting the principal "shooters" to escape. The principals were part of a criminal group called "DK's Boys". The Crown produced evidence of two motives, possibly three. The evidence of motive(s) expressed before the shooting suggested anger at treatment of (young) Lebanese people in the Lakemba area by the police and the need to make "a statement" and/or was related to police activities directed at Tony Haddad (involved in car repair and rebirthing), an associate of the alleged gunmen, who lived in Wiley Park. A second (or third) motive arises from an alleged admission by the accused months after the event that he wanted to get the police off "his (or our) back(s)", his smash repair business having been raided on 14 October 1998. 5The Crown relies upon oral evidence and photographic evidence, to show that Mr Jamal was an associate of the criminal group at the time of the Lakemba shooting. The photograph(s) do not establish this, as such, as nobody knows precisely when they were taken. But one photo of the accused shows him in company of members or associates of the group. The principal witnesses Alan Rossini, Peter Laycock and Dennis Green were members of the group, although Green played no role in the events of 31 October/November 1998 at Lakemba. The evidence of admission was given by Mr Kennedy (a criminal associate of the accused). All civilian witnesses had pseudonyms when giving evidence. 6As to the accused's role in the joint criminal enterprise, stated simply, proof of guilt relied principally upon the accounts of Rossini and Laycock with purported support from Mr Green (of the accused's presence at a relevant planning meeting) and Mr Kennedy (of the admission(s) made by the accused). If one was satisfied of Mr Jamal's presence in the company of the' shooters' before the shooting, as they armed themselves, as they discussed their plans to shoot the police station, driving them nearby to the scene to pick up a stolen car and waiting for them to drive them away after the shooting, the relevant knowledge and relevant intention to participate in the joint criminal enterprise would follow as a matter of common sense. Of that there was no dispute at trial. 7The prosecution case had no evidence independent of the civilian witnesses to place the accused in the company of the shooters in circumstances which would establish relevant knowledge, intention and participation. It produced independent evidence to establish Laycock's, and thus Rossini's, involvement from the CCTV photos taken of Laycock buying a petrol can at a service station on Canterbury Road before the shooting. A stolen car used by the shooters was burnt afterwards by use of petrol, the can used was found at the scene. 8The Crown case relies upon accepting the truthfulness of Mr Rossini, and in so doing relying upon the truthfulness of the evidence of Laycock and Green to support him materially, although their evidence in different ways is relied upon as direct evidence of participation by the accused in the criminal enterprise. 9The evidence of the ex post facto statement made to Kennedy, if accepted, is capable of supporting the essence of Rossini's account in a general sense. On the other hand, even accepting that the words were said, one would have to accept that the admission was true and not boasting or "grandstanding" on the part of the accused. 10The context or background to the charge brought against the accused is the activities of a criminal gang or group that was controlled by a man called Danny Karam until he was murdered by members of the group in December 1998 at Surry Hills. This criminal group existed at least during 1998 through to June 1999. On the basis of the evidence of Alan Rossini and his connection with it, it existed also in 1997. It was involved in a number of criminal activities in the period 1998 to 1999, but a central criminal activity was the supply of cocaine in the Kings Cross area. The evidence shows that members of the group and their associates were involved in murders, woundings of individuals by firearms, discharging of firearms in public places to intimidate others (or as revenge), dealing in stolen motor vehicles, supply of marijuana, physical assaults upon drug supply rivals and others, extortion, 'protection', significant firearms possession and the use, driving and destruction of stolen cars, amongst other criminal activities. The group had "safe houses", or establishments that they controlled, or occupied in the inner city and elsewhere. These places were, at various times, at Paddington, Surry Hills, Mays Hill, Haymarket, Campsie and elsewhere. At these places from time to time were kept prohibited drugs and firearms. The principal 'safe house' in this matter was 343-349 Riley Street, Surry Hills (the Surry Hills apartment). In October/November 1998 that apartment (in the Mayfair/Addison Apartments) was where cocaine was packaged and where a number of firearms were kept. These included handguns, an 'AK47' and shotguns. 11Danny Karam, was the head of the organisation until his death in mid December 1998. His main lieutenants were Michael Kanaan, Alan Rossini, Wassim El-Assad and Rabeeh Mawas. Other people with prominent roles in the group were Charlie Gea Gea and Ghassan Said, generally referred to as 'Easy'. Shardi Derbas, 'Hass' or 'Has' and Tony Haddad (who lived in Wiley Park) were nominated as associates by Rossini or Laycock, amongst others. Saleh Jamal was clearly an associate, but his role within the group was a matter of some dispute. There was some conflict in the evidence about the roles of people other than Kanaan, El-Assad, Mawas and Rossini. Rossini described himself and others as 'lieutenants' to Danny Karam, including the accused, Gea Gea and Easy as lieutenants as well. Other assessments placed Kanaan above Rossini who was above El-Assad and Mawas. There was no formal 'organisation chart', but of the leading roles of Rossini and Kanaan I have no doubt. Although Mr Rossini could be said to have made many frank admissions about his role within the group, there was a strong impression that whilst he was willing to take general responsibility, in specific instances he attributed blame or responsibility to others in circumstances at odds with his capabilities and interests in the group's activities. The critical matter, however, was understanding the relationship of the accused with the group at what could be called the relevant time, late October, early November 1998. 12Mr Rossini placed the accused as an active participant in the central criminal activity of the gang, supplying cocaine, making him out to be one of the 'Boys'. Apart from some suggestion in the evidence of a minor role in that regard by him, in that he sourced cocaine on one occasion, there was no support in the evidence of Mr Laycock or Mr Green that the accused was substantially involved in this core activity. Special rings were made with an inscription 'DK' and other writing, to signify membership of the group. Mr Jamal was not the recipient of such a ring from Danny Karam .Special tattoos were acquired by at least some of the 'Boys'. Not Jamal apparently. In fact, up until Karam's murder in December 1998, no witness refers to Jamal being in Karam's company. The accused was know as "Ray" or "Saleh" or "Sully" by members of the group. I am prepared to accept that Mr Jamal was an associate of the group and given his contact with it, would have been aware of some of its criminal activities. There was evidence that he was directly involved in dealing with stolen cars, "rebirthing" as it was referred to, and at least from January 1999 was involved in the supply of marijuana. He was involved in the shooting of Elias Elias in 1998. Many of these activities, however, were not integral to the criminal activities of DK's Boys. Involvement in car rebirthing could assist the criminal group in its various activities, particularly given its need from time to time for stolen cars to commit to various crimes. Rossini did not give a specific instance of this activity by the accused. In fact, he said that Tony Haddad, who was involved in car theft and rebirthing, was the source of the stolen car used in the crime with which this trial is concerned, as he had been on other occasions. 13Around the events giving rise to the count in the indictment, the group was involved in particular criminal enterprises, many of which I note in passing did not allegedly involve the accused, but which were are relevant in assessing the truthfulness, reliability, accuracy and general credibility of the witnesses Rossini, Laycock and Green. Both Laycock and Green were acolytes of the group who were connected from different perspectives. Laycock was Rossini's cousin and was employed by him no later than August 1998 as a driver and messenger. His role in the group increased after Karam died, to the point where he played an active role as an enforcer, particularly in the discipline of runners. He sought to portray himself as feckless, disinterested and merely a 'catch and fetch dogsbody'. Whilst he may have been that in 1998, in 1999 he was more important and had more independence, although he was still at the direction principally of Rossini and Kanaan. Mr Green in 1998 was a runner distributing cocaine at street level. When he became a manager for the group after Karam died he had more authority and over a six-month period, at least, regularly carried a firearm to enforce that authority. 14Amongst the principal criminal offences that were referred to in the evidence as committed or by involving this criminal group (or Rossini particularly) were: + the murder of Adam Wright and Michael Hurl and the attempted murder of another man outside a hotel in Five Dock (the Five Dock matter) in July 1998 + the shooting at and around the EP1 nightclub in King's Cross in September 1998 + the shooting of Elias Elias at Greenacre on 13 October 1998 + false alibi for the person responsible for the murder of Edward Lee (a schoolboy) on 17 October 1998, + the shooting at Lakemba police station on one November 1998, + the discharge of firearms in Everleigh Street Redfern on 11 November 1998 + the murder of Danny Karam on 13 December 1998 + the attempted murder of two police officers in a Rushcutters Bay (the White City matter) on 23 December 1998. 15There were other crimes are admitted by Rossini and Laycock around this period, but many of the above mentioned crimes were matters about which they gave induced statements and are protected from prosecution. 16In addition to the activities of the group, or of individuals identified in the trial, with varying degrees of detail, there were some other relevant events. These included, the arrest of Michael Kanaan on 23 December 1998 (over the White City shooting, he being severely wounded) and his release to bail on 5 March 1999, the arrest of Rossini, Laycock and Green on a charge of conspiracy to supply a commercial quantity of cocaine on 1 June 1999, the 'rollover' of Laycock in early June 1999 followed by the 'rollover' of Rossini, Rossini giving evidence at the New South Wales Crime Commission in early July 1999, the arrest of the accused on 16 July 1999 in relation to other offences and his arrest in relation to the current matter on 17 September 1999. 17Mr Rossini gave evidence at committal proceedings regarding the Lakemba matter on 13 November 2000, Laycock on 14 November 2000. Alan Rossini gave evidence at the Karam's murder trial, involving Kanaan, El-Assad and Mawas in late April 2002, Laycock gave evidence at the same trial in May 2002. Then there was a 2004 trial in relation to the Lakemba shooting involving Kanaan, El-Assad and the accused. Only Rossini gave evidence before the jury was discharged. Then there was a trial in May 2005 of Kanaan and El-Assad of this matter at which Rossini and Laycock gave evidence, as did Dennis Green. There finally was a trial of the accused in November 2009 in relation to the Lakemba matter, at which Rossini gave evidence on 9 November 2009 and Laycock gave evidence on 10 November 2009. The accused was convicted. The specific charges brought against particular people for the 'Lakemba matter' have apparently varied, but are not important at this point. I had not read the judgement of the decision of the Court of Criminal Appeal in respect of Mr Jamal's successful appeal against his conviction before this trial commenced and have not read it subsequently. I had tried Mr Kanaan and the accused for the shooting of Elias Elias. Both men were found guilty by a jury and I sentenced them both. Naturally, I have a general recollection of that trial, and some recollection of the detail of the trial, but I have not refreshed my memory from my sentencing remarks, or the summing up. No application was made by either party for me to disqualify myself because I had presided over that trial. The detail of that event has only been a peripheral to the issues in this trial, primarily in relation to the credibility of Mr Rossini. But as no evidence from that trial was the subject of significant cross-examination of Mr Rossini or Mr Laycock, those proceedings ultimately were of no significance whatsoever in this trial. 18Apart from the civilian witnesses to give evidence, the current officer in charge, Detective Senior Sergeant Mackenzie, gave evidence of matters that emerged from the police investigation in 1998/1999, as well as some additional evidence such as a motor vehicles registered in the name of the accused in 1998. The motor vehicles that the accused acquired, from 1996 up until his arrest in July 1999, were, a Mitsubishi Lancer sedan, a Holden Barina sedan and a Mitsubishi Magna sedan. No four-wheel-drive vehicles of the types described by Mr Rossini and Mr Laycock were registered to the accused. However, although it was not the subject of particular address, I understand that the evidence suggested, even established, that the accused had access to other motor vehicles, including stolen and rebirthed motor vehicles. He also was connected to, or had an "interest" in, President Smash Repairs, a business at 69 Rosedale Avenue Greenacre which was searched by police on 14 October 1998 in relation to an operation relating to stolen cars, from which two motor vehicles were seized. No person was arrested or charged in relation to this action. Although the relationship of the prisoner with the business is not precisely defined, even in Mr Kennedy's evidence which is concerned with late January 1999 onwards, the accused had a connection with that business at that time and was observed coming and going from the business in mid July 1999, the day before his arrest. 19The evidence of "bad character" of the accused led by the Crown was relevant to establishing a connection with DK's Boys at the relevant period of late October or early November 1998, to establish a motive on the part of the accused to be part of a criminal enterprise to shoot at the Lakemba Police Station and to show the capacity of the prisoner to have access to motor vehicles that may be used in the criminal enterprise and items such as a police scanner, as alleged by Mr Rossini. Certainly, it was not the Crown's contention that "tendency" or "coincidence "evidence was relevant or admissible in relation to these matters.