R v Abdallah (No. 6) [2014] NSWSC 293

Supreme Court New South Wales

Medium Neutral Citation: R v Abdallah (No. 6) [2014] NSWSC 293 Hearing dates: 17 - 21, 24 - 28 February 3 - 7, 10 March 2014 Decision date: 10 March 2014 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: I reject the application for a verdict by direction Catchwords: CRIMINAL PROCEDURE - interlocutory issues - application for verdict by direction Legislation Cited: Crimes Act 1900 (NSW) s 29 Category: Interlocutory applications Parties: Regina (Crown) Tarek Abdallah (Accused) Representation: Counsel: P Leask (Crown) D Dalton SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) AHA Taylor (Accused) File Number(s): 2012/00008057

EX TEMPORE JUDGMENT 1Mr Tarek Abdallah, the accused, is standing trial on an indictment containing two counts. 2The first count alleges that on 4 January 2012 he murdered Neal Todorovski by shooting him in Selmon Street, Sans Souci. 3The second count is a count of attempted murder of John Leger. The Crown case is that having shot down Todorovski he pursued Leger, one of Todorovski's associates, and fired his gun at Leger with the intention of murdering Leger. 4The second count is based on s 29 of the Crimes Act 1900 (NSW). So far as is relevant to the present circumstances that provision is in the following terms: Whosoever: Shoots at... any person, with intent in any such case to commit murder, shall, whether any bodily injury is effected or not, be liable to imprisonment for 25 years. 5The Crown case can be fleshed out a little more than I have in my introductory remarks. The pursuit of Leger took Leger and the accused down the driveway of an apartment block at number XXXXXX Street, Sans Souci. At the northern end of the driveway Leger climbed over the Colorbond fence and ran east across the backyard of number YY-YY Selmon Street. Whilst he was doing so the Crown says that the accused got to the Colorbond fence, leaned over the fence and shot at Leger as he was still visible crossing the yard. The accused missed, the bullet ricocheted off the ground, passed through a Colorbond fence on the other side of the yard, and struck a Holden station wagon parked on the driveway on the otherside. 6Leger escaped by exiting through a gate at the north-eastern corner of the yard. 7The evidence in the case now being virtually complete with the exception of playing a recording, the contents of which are irrelevant to this charge, learned Senior Counsel for the accused, Mr Dalton, applies for a verdict by direction on the second count. 8It is not necessary for me for the purpose of this application to discuss at length the many precedents concerning the nature of the task of the trial judge in such an application. That legal test may be stated simply by saying if there is any evidence at all, taking all of the evidence led in the case at its highest, and considering all available inferences that might be drawn in favour of the prosecution's case, capable of legally supporting a verdict of guilty the case must be left to the jury for its decision. 9No question arises about the relative strength of the Crown case, or about whether, as a matter of fact, even if there is evidence legally to support the charge, a verdict of guilty would be justifiable on a conviction appeal to the Court of Criminal Appeal. My task has nothing to do with that. 10The argument of Mr Dalton may be summarised in this way. He says that there is simply no evidence that the accused shot at Mr Leger. He accepts that there is no doubt evidence, and indeed the accused himself says as much in his evidence, that the accused pursued Leger down the driveway. It is also accepted that there is evidence, including the evidence of the accused, that when he got to the northern end of the driveway he leaned over the fence and discharged his handgun. The point is, on learned senior counsel's argument, that there is no evidence that at the time the accused discharged the gun he was shooting at Mr Leger in the sense of attempting to hit him with a bullet to cause his death. 11The accused's own version is that by the time he leaned over the fence and fired, Leger had already made good his escape through the gate at the north-eastern corner of the yard but that he discharged the gun anyway in the direction of the ground for the purpose of "warning- Leger-off", I infer to discourage him from returning until the accused had had the opportunity of making good his escape. The accused says, effectively, that shot was fired in self-defence because Leger was the person who initiated the affray (and I use that expression in a non-technical sense) which resulted in Todorovski being shot. 12Regardless of what the jury, if they come to decide this case, may think of that evidence and the defence of self-defence, as I have said the only question for me is whether there is evidence from which the jury could infer that at the time the accused discharged the gun over the Colorbond fence Leger was still in the backyard, or at least still visible to the accused so as to provide him with some sort of target, and that the gun was fired to hit him. 13The learned Crown Prosecutor acknowledges that his case on the second count is very largely circumstantial. Despite a number of witnesses who have given direct evidence relevant to parts of the second count, that is to say evidence relevant to different elements of the second count, there is no one eyewitness who gives evidence that puts Leger in the backyard at the time the accused fired his gun and to that extent his case must depend upon him persuading the jury to draw an inference favourable to the prosecution. 14The eye-witnesses include a Mrs Kiel. Mrs Kiel lived on the southern side of Selmon Street directly opposite the driveway of number XXXX. She heard events which undoubtedly related to the affray and the discharge of the bullets that killed Todorovski. After taking some steps to safeguard her children who were in the home she slightly opened her front door and looked out. From that vantage point she saw the right side of a person. It is not in issue that that person is the accused. She said at 736.35T: His left hand was resting on the fence. He was standing in the garden and his right arm was resting over the top of the fence so the top of the fence was underneath his armpit. I didn't see his arms. Q. What did he appear to be doing? A. I don't know. He was shouting at some point. I didn't hear what they were saying. I didn't see, like facial expressions, but he was obviously yelling. Q. I'm not going to ask you to interpret what he was doing. I'm asking you to tell us what you saw him doing. You told us how he was positioned over the Colorbond fence. What was his activity at that time? A. I heard some loud bangs, and at that same point I saw his right hand raise up and then saw the gun in his hand." 15In cross-examination Mrs Kiel acknowledged that she assumed that the accused was shooting at someone but she did not see whom. She didn't know if he was shooting at the ground or at somebody or at some thing. (748.25T). 16Mr Bain also gave evidence. He was a resident of an apartment in a block on Park Road which is the parallel road directly to the north of Selmon Street. He had been sleeping and he was awoken by someone yelling out, "You're f** dead." He looked out his window having been roused from his slumber and saw a person who it is open for the jury to infer was Mr Leger. He did not see any other person and, indeed, on his evidence Mr Leger, it might be said, seemed to be a little disorientated going to and fro looking for a means of exiting the yard. 17In fact, on Mr Bain's account, the black Range Rover, which is the vehicle of the accused, drove up Campbell Street, which intersects Selmon Street, in a north-south direction, that is, drove north up Campbell Street whilst Mr Leger was still in the yard. His evidence on its own could not make good the necessary element that the accused shot at Mr Leger. And, indeed, there is much to be said for the argument of Mr Dalton that Mr Bain's evidence, taken as a whole, is rather against the Crown case on the second count. Indeed, Mr Bain disavowed having heard any sound which he recognised as a gunshot. He heard a number of bangs which sounded like someone striking an aluminium fence and he agreed in cross-examination that it might have been the sound of someone clambering over a fence. 18Ms Shumsky falls into a similar category to Mr Bain in the sense that her evidence is more important for what she hears than what she sees. As at 4 January 2012 she also lived in a block of units on Park Road. Mr Bain's block was on the corner of Campbell and Park and Ms Shumsky was in the neighbouring block to the west of Mr Bain's block. What she heard, and she is quite clear about this, is someone screaming, "You're f****** dead, you're f****** dead." At T768.35 she gave the following evidence: Q. Did you hear any other noises aside from the voice at that time? What is it you heard? A. I don't know if it was a gunshot but it was a loud noise. Like a car backfiring, you know. Like a gun going off. I never heard a gun go off besides on TV. I heard a noise. 19Her evidence is significant in as much as she has the aggressive language immediately followed by a loud noise. From her own experience she could not identify that noise as a gunshot, but it is open to the jury to infer from her evidence that what she heard was the shot fired by the accused over the Colorbond fence. 20I should also state by way of context that the accused acknowledges that, "You're f****** dead," was a phrase used that day not long before he discharged the gun in as much as he says Leger yelled that at him. Neither Mr Bain nor Ms Shumsky can identify the voice and Mrs Kiel did not hear what was said by anybody except that she did see the accused making facial movements which she interpreted, with her experience of life, as the accused in the act of yelling something. 21There is no single test which establishes the necessary measure of evidence to justify a jury in arriving at a verdict of guilty in a circumstantial evidence case. All that can be said is that it is their obligation to act upon the inferences drawn from all of the circumstances of the case as found by them on the evidence they accept. If applying that test they are of the view that there is a reasonable hypothesis open on all of the circumstances drawn from that acceptable evidence consistent with the innocence of the accused they are bound to acquit. However, my task, as I have said, is different. 22 I accept the argument of the Crown that in considering the evidence in the case the jury will be entitled to look at all of the evidence that has been led. That will include the evidence about what happened on 12 December 2011 and whether it was the accused on that occasion who uttered a very similar phrase to that heard by Ms Shumsky or whether it was Todorovski who used those words, and in that regard there is a conflict in the evidence between two equally independent eye-witnesses. 23I think also, although care has to be applied, the jury is entitled to approach each case on the whole of the evidence. Each count must be considered separately. However, in deliberating on each count the jury is entitled to consider the whole of the evidence actually led in this trial, and although the murder charge is concerned with what happened on Selmon Street and the attempted murder charge is concerned with what happened along the driveway of XX Selmon Street, it would be artificial to treat these events as isolated from each other. The jury would be entitled to treat them as all the part of a continuum which commenced when the accused arrived in Selmon Street and ended when he departed. And if, for instance, the jury formed the view contrary to the evidence of the accused that in shooting Mr Todorovski the accused was an aggressor, not acting in self-defence, then they may use that circumstance as one of the circumstances established by the evidence in conjunction with all other circumstances to conclude that it was the accused who yelled, "You're f****** dead," down the driveway and discharged his gun at Leger. All of these circumstances, it seems to me, although there is no direct evidence that Leger was a target to be shot at when the accused discharged his gun over the fence, persuade me as a matter of law, not of fact, that there is evidence which would entitle the jury to bring in a verdict of guilty on the second count. Perhaps to express that more felicitously, in my opinion there is legally sufficient evidence to support a verdict of guilty on the second count and I reject the application for a verdict by direction.