R v Zarshoy [2017] NSWSC 1437

Supreme Court New South Wales

Medium Neutral Citation: R v Zarshoy [2017] NSWSC 1437 Hearing dates: 14-15 September 2017 Date of orders: 19 September 2017 Decision date: 23 October 2017 Jurisdiction: Common Law - Criminal Before: Hidden AJ Decision: Evidence rejected Catchwords: CRIMINAL LAW - admissibility of evidence – tender by the Crown of statements made by accused in intercepted telephone conversations - probative value – whether capable of being interpreted as admissions of guilt Legislation Cited: Evidence Act 1995 Uniform Evidence Law (12th Edition) Cases Cited: IMM v The Queen (2016) 257 CLR 300, [2016] HCA 14 Category: Procedural and other rulings Parties: Regina Mohammad Zarshoy Representation: Counsel: Mr K McKay Mr R Driels

Solicitors: Solicitor for Director of Public Prosecutions Zahra Partners File Number(s): 2014/316236 Publication restriction: No

Judgment

Admissibility of telephone intercept evidence 1. HIS HONOUR: The accused is on trial for the murder of Mahmoud Hamzy and the infliction of grievous bodily harm upon Omar Ajaj with the intent to inflict grievous bodily harm upon him. There are also charges of manslaughter, as an alternative to the murder count, and of participation in a criminal group.

Crown Case 1. The Crown case is that shortly after midnight on 29 October 2013, the accused and two other men, all of them armed, entered the garage at a residence at 28 Bardo Circuit, Revesby Heights with the intention of killing Mohammed "Hamoudie" Hamzy. At the time Mr Hamzy was in the garage with Mahmoud Hamzy and Mr Ajaj, who were his cousins, and his brother-in-law, Mehmet Yarar. The accused and his two companions fired their weapons. The intended victim, Mohammad Hamzy, and Mr Yarar escaped from the garage but Mahmoud Hamzy was fatally wounded. On the Crown case, the shooters may have mistaken Mahmoud for the intended victim, who was not personally known to them. Mr Ajaj was also wounded but survived. 2. The two men accompanying the accused are alleged to have been Jamal Quami and another man who has become a Crown witness, referred to as witness "L". It is the Crown case that the three of them travelled to the address at Revesby Heights in a car driven by another person who has become a Crown witness, referred to as witness "M". After the shootings they were driven from the scene in that car by witness "M". The three men were dressed in dark clothing and wearing balaclavas to conceal their identity. They are said to have been members of the "Brothers for Life" gang at the time, as was the intended victim, Mohammad Hamzy. The incident appears to have occurred in the context of internecine rivalry between the accused and Mohammed Hamzy, and after the accused had heard that Mohammad Hamzy was out to kill him. 3. The accused had previously been tried for these offences before Hamill J, in a joint trial with other persons who faced further charges. The jury was unable to agree upon verdicts in relation to the accused, and he stands alone before me for re-trial. 4. I received on the voir dire the Crown Case Statement and other material, from which the following emerges. On the day after the shooting, at hospital, the surviving victim, Mr Ajaj, told police that he was sitting in the garage with his companions when a car arrived outside. He saw a passenger in the back jump out and start shooting. Two more people also got out of the car and were shooting. He saw Mahmoud Hamzy being shot in the head and falling to the floor straight away. He also saw one of the men shoot Mahmoud in the head again where he was lying on the ground. He himself was shot in the leg. He was "playing dead" and the men left. As he heard the car drive off, he lifted his head and the "guy in the back seat" saw that he wasn't dead and "started shooting" at him. The evidence of witness "L" is that the accused occupied the rear seat both before and after the shooting. 5. Mr Ajaj's statement that the car pulled up outside the garage and the assailants emerged from it is inconsistent with CCTV footage obtained from a camera at 46 Bardo Circuit, some distance from Mr Hamzy's home. This discloses that the relevant car stopped outside No. 46 and three people, dressed in dark clothing and wearing balaclavas, got out of it. They started walking in the direction of No. 28, the Hamzy residence, followed by the car, which was being driven with its lights off. 6. In evidence at the previous trial, Mr Ajaj resiled from the account he had given to the police in this respect. The effect of that evidence was that the first thing he saw was a man with a balaclava and a gun shooting. He saw that Mahmoud had been shot in the head, he got up and another two shooters ran in, firing their weapons. He said that the car arrived while the shooters were in the garage. He maintained his account of being shot in the leg and of playing dead. He said that he realised the assailants had left when he heard the car door slam. He got up to look and "someone in the back seat" had "shot me again and had got me in the stomach on the side." In his statement to police Mr Ajaj had not described having been shot in the stomach. 7. Another witness who had been a member of Brothers for Life at the time, referred to as witness "J", gave evidence at the previous trial that the accused later told him that he "shot a bullet out the car window or something like that..." 8. It is the Crown case that Mr Quami was armed with a .38 calibre pistol with a particular serial number, and the accused had a .38 calibre pistol of a different model with its own serial number. Witness "L" used a .45 pistol, but the weapon has not been recovered and its make and model are unknown. At the previous trial witness "L", Quami and the accused were referred to as the first, second and third shooters respectively. As I understand it, this was done for convenience and does not indicate any order in which events occurred on the night in question. 9. On post-mortem examination, Mahmoud Hamzy was found to have suffered a number of gunshot wounds, including three to the head. Fired bullets were recovered from two of these wounds, which could be matched ballistically to the pistol used by Quami. The third wound had entry and exit points but no bullet was found, conveying that it had passed through the head. There were a number of other wounds to Mr Hamzy's body, from some of which were recovered from .45 calibre bullets, the calibre of the pistol used by witness "L". 10. During surgery on Mr Ajaj, two spent bullets were removed from wounds to his right thigh and right leg, one of which was able to be identified as .45 calibre. There was a wound to his abdomen but no bullet was recovered from it. 11. At the garage, police observed several fired bullets and fired cartridge cases. Significantly for present purposes, four bullets which were found were linked ballistically to the pistol said to have been used by the accused. One was found near the door exiting the garage. The others were in locations consistent with having been fired towards an area where people in the garage had been seated. Two were located in a wall, and another underneath a black hooded jumper on a blood stained area said to be consistent with the position on the ground where Mahmoud Hamzy fell after being shot. The Crown invites an inference to be drawn that that was the bullet which passed through Mr Hamzy's head. 12. The accused's position, as it was at the previous trial, is that he was not one of the three shooters and was not present in the vicinity when the shooting occurred.