Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Atai v R [2014] NSWCCA 210
• Hearing dates: 6 March 2014
• Decision date: 03 October 2014
• Before: Basten JA at [1]; R A Hulme J at [21]; Schmidt J at [152]

Decision

1. Leave to appeal against conviction granted, with respect to grounds 1 and 4.

2. Appeal against conviction dismissed.

3. Leave to appeal against sentence granted.

4. Appeal against sentence dismissed.

• Catchwords: CRIMINAL LAW - murder - appeal against conviction - no evidence that witness in respect of whom s 165 Evidence Act warning sought might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings - incumbent upon defence to elicit evidence to that effect - no miscarriage resulting from omission to give Murray direction - no undermining of the onus of proof by trial judge stating that jury would have expected to hear challenge to denials by witnesses that they were the shooter if there was one - not persuaded that jury should have had a doubt that the applicant was the person who fired the gun that resulted in the death of the deceased - not persuaded that jury should have had a doubt that the applicant had the relevant mental state; CRIMINAL LAW - murder - appeal against sentence - unproductive to single out one subjective feature, age, in sentence comparison - necessary for sentence to reflect deterrence, denunciation and recognition of harm notwithstanding subjective case - sentence not manifestly excessive
• Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6; Criminal Appeal Rules (NSW), r 4; Evidence Act 1995 (NSW), s 165
• Cases Cited: Clark v R [2001] NSWCCA 494; 123 A Crim R 506; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321; Imnetu v R [2014] NSWCCA 99; Kanaan v R [2006] NSWCCA 109; M v The Queen [1994] HCA 63; 181 CLR 487; Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; R v Abdulkader and Hohaia [2006] NSWSC 866; R v Barrett [2009] NSWSC 338; R v Burt [2003] NSWCCA 248; 140 A Crim R 555; R v Cambey and Carney [2010] NSWSC 369; R v Carr [2009] NSWSC 995; R v Chan [2002] NSWSC 544; R v Clark [2001] NSWCCA 494; 123 A Crim R 506; R v Dennis [2009] NSWSC 1357; R v EM [2005] NSWSC 212; R v Gosling [2001] NSWSC 850; R v Hamzy [2004] NSWCCA 243; R v Harvey [2007] NSWSC 871; R v Houri [2007] NSWSC 615; R v Murray (1987) 11 NSWLR 12; R v Nguyen [2007] NSWSC 389; R v P Pham, V Pham and Nguyen [2003] NSWSC 1261; R v Shamouil [2009] NSWSC 24; R v Soto-Sanchez [2002] NSWCCA 160; 129 A Crim R 279; R v Stewart [2001] NSWCCA 260; 52 NSWLR 301; R v Tatchell and Wildsmith [2010] NSWSC 495; R v Vann [2004] NSWSC 988; R v Wong [2010] NSWSC 171; R v Zaro [2007] NSWSC 756; Robinson v The Queen [1999] HCA 42; 197 CLR 162; SKA v The Queen [2011] HCA 13; 243 CLR 400
• Category: Principal judgment
• Parties: Masood Atai (Applicant); Regina (Respondent)
• Representation: Counsel: Mr T Game SC with Mr D Barrow (Applicant); Mr P Ingram SC (Crown); Solicitors: Criminal Defence Group; Solicitor for Public Prosecutions
• File Number(s): 2010/36738

Decision under appeal

• Jurisdiction: 9111
• Citation: [2011] NSWSC 1617
• Date of Decision: 2011-12-13 00:00:00
• Before: Grove AJ
• File Number(s): 2010/36738

Judgment

1 BASTEN JA: The applicant Masood Atai (the accused at trial), sought leave to appeal against his conviction by a jury for the murder of Mr Ang Van Ly at Fairfield on 24 November 2009. He also sought leave to appeal against his sentence, being imprisonment for a mandatory period of 18 years with a balance of term of six years. The background to the offending and the conduct of the trial are detailed by R A Hulme J. I agree that the appeal against conviction should be rejected and, subject to the following observations, with his reasons. I would uphold the challenge to the sentence imposed.

Unreliability warning

2 Section 165 of the Evidence Act 1995 (NSW) applies to "evidence of a kind that may be unreliable". The categories of such evidence are not limited, but include evidence given by a witness "who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding": s 165(1)(d). A warning "is to" be given if a party so requests, unless the judge is satisfied that there are "good reasons for not doing so": s 165(3). There may be constraints in other provisions of the Evidence Act and the Criminal Procedure Act 1986 (NSW), but subject to such extraneous provisions, s 165 does not affect any other power of the judge to give a warning: s 165(5).

3 Counsel for the accused did seek a warning on the basis that Mr Yazin "may have been criminally involved in the enterprise": Tcpt, summing up, 20/09/11, p 34. The trial judge noted that Mr Yazin had talked about "involvement" and asked counsel to identify the passage, which he promptly did. The judge, correctly, rejected the application based on that passage, as it did not indicate involvement in the criminal enterprise with which the accused was charged. It is not entirely clear from the transcript whether the whole of the discussion with counsel is recorded; there is a suggestion that it may not have been. In any event, there was no submission in this Court that counsel sought to base the application on some firmer foundation.

4 There was, however, an alternative basis for such an application, although the formulation of an appropriate direction would have required careful consideration by counsel for the accused. As R A Hulme J explains, the case for the accused at trial sought to diminish the involvement of Mr Yazin in the events on the evening in question and distance him further from the house where the shooting occurred than his evidence suggested. On that case, the likelihood of him being charged as criminally involved in the events of the evening became more remote, thus diminishing the basis for alleging unreliability. Nevertheless, the jury might have dismissed the attempts by the accused to distance Mr Yazin from the events; there might then be an increased risk that Yazin had sought to gain immunity, exonerate himself, or at least diminish his culpability, by giving evidence favourable to the prosecution case.

5 There would be two obstacles to the applicant now relying upon such a complaint. The first is the lack of an evidential basis for such a warning. The difficulty in requiring a warning in circumstances where the basis of the supposed unreliability has not been put to the witness in cross-examination is well understood: see Clark v R [2001] NSWCCA 494; 123 A Crim R 506 at [64] (Heydon JA, Dowd and Bell JJ agreeing). That difficulty is exacerbated where the circumstances assume a finding inconsistent with the accused's case on this point.

6 The second difficulty is related to the first: it is by no means clear that an appropriate warning could have been formulated in terms acceptable to the accused. Thus the critical elements in Yazin's evidence included the description of the position from which he said he could observe events occurring in front of the house and evidence revealing knowledge of the fact that the applicant had a weapon, both immediately before the shooting and thereafter. At least on one view, the effect of this evidence was not to exculpate Mr Yazin, but rather tended to inculpate him in the criminal activity. There might be grounds for identifying unreliability on that account, but they would be quite different from the warning given with respect to a co-offender who might be seeking to exculpate himself.

7 The common purpose underlying a request pursuant to s 165 and the need for the point to be taken at trial, for the purposes of r 4 of the Criminal Appeal Rules (NSW), is to ensure that such matters are explored in the context of the trial. If that does not happen, not only is the position that the accused would have adopted unknown, but it also unknown whether the judge would have declined to give a direction sought for good reason, including the possibility that it might have been harmful to the accused's interests or simply confusing.

8 In these circumstances, although it is possible that s 165(1)(d) could have been properly invoked, that did not happen and it cannot be said that any miscarriage of justice arose under s 6(1) of the Criminal Appeal Act 1912 (NSW).

Unreasonable or unsupportable verdict

9 This was not a case in which the applicant failed to particularise the specific aspects of the case said to give rise to an unreasonable or unsupportable verdict. It was also not a case in which it could readily be said that the verdict of the jury was inevitable. Accordingly, it is an appropriate case to grant leave to appeal on this ground: see Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68 at [210].

10 On the other hand, it was not a case in which the evidence of the key prosecution witness (Mr Yazin) could be dismissed as not warranting acceptance on critical elements of the offence beyond reasonable doubt. There were, as explained by R A Hulme J, elements of his evidence which could have been (and were) relied upon to demonstrate unreliability sufficient to raise a reasonable doubt as to the guilt of the accused. This was not, however, a case in which the credibility of a key prosecution witness had to be weighed against inconsistent evidence from, for example, the accused or a witness called by the accused. This case required the jury to assess the credibility and reliability only of the prosecution witness. For this Court to carry out an independent assessment of Mr Yazin's evidence involves a consideration of all the surrounding evidence, whether it is inconsistent with, supportive of or neutral with respect to his evidence. In not dissimilar circumstances in Lee, this Court held:

"[191] The Criminal Appeal Act is said to follow the 'common form' found in many (but not all) Australian jurisdictions, which derived from the Criminal Appeal Act 1907 (UK). The ground on which such intervention is permitted (and required) is where the appeal court is 'of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence': s 6(1), first limb. The use of internal commas indicates that both unreasonableness and absence of support are to be judged by reference to 'the evidence', including evidence accepted by the appeal court but not given at trial: s 12.

[192] Appellants sometimes rely upon this ground, rather than the third limb (namely that there has been a miscarriage of justice 'on any other ground') to avoid identifying with precision any particular gap in the evidence or ground upon which a miscarriage may have occurred, while requiring the Court to apply the principles stated in M v The Queen [1994] HCA 63; 181 CLR 487 at 494:

'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.'

[193] The Court in M then stated that the appellate court was not substituting its decision for that of the jury's verdict, 'for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'. However, at 493, the joint reasons stated:

'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'

[194] It is now clear that references to whether a particular conclusion was 'open to the jury' were not to be understood as requiring the appeal court to ask 'whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence': SKA v The Queen [2011] HCA 13; 243 CLR 400 at [20] (French CJ, Gummow and Kiefel JJ). Further, it is erroneous to consider the central question 'whether on the evidence the Court was satisfied that the applicant was guilty of the offences - as rather an ancillary question to the question whether there was a sufficiency of evidence to sustain the conviction'."

11 Applying these principles, the ground should be rejected, for the reasons articulated by R A Hulme J.

Sentence

12 A sentence of 24 years with a non-parole period of 18 years involves severe punishment. Factors warranting a lower rather than higher sentence included the age of the offender (18 years), a finding as to his "considerable immaturity" and his severely disadvantaged background. On the other hand, he was identified as the leader of the gang which went to the house; although the offence may be described as not premeditated, he was carrying a loaded revolver and fired it, albeit without an intention to kill, in circumstances where there was no threat or fear of violence directed at him and where the intended purpose of the activities, which may have been to obtain drugs, had apparently been frustrated.

13 The trial judge described the offence as "above the mid-range of seriousness of such offences", but it not possible to place much weight on that characterisation because of the usual vagueness as to what is said to constitute a "mid-range".

14 The applicant put before the Court two groups of possibly comparable cases, each limited to offenders between the ages of 18 and 20 years. One group pre-dated the commencement of the standard non-parole period (which is 20 years), the other post-dating the introduction of that standard, but pre-dating the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, which identified potential error in the practice of this Court in conceding too much weight to the standard non-parole period. (The error may be described as "potential" only because, as recent cases demonstrate, it is not always easy to know whether the error has arisen in a particular case.) Changes in sentencing requirements and practices have thus created significant difficulties in establishing an appropriate range of sentence for murder in this State. In Imnetu v R [2014] NSWCCA 99, I said at [29]:

"These considerations would suggest that the correct approach might involve three steps, namely:

(a) identifying a range of sentencing for murder with respect to offences committed prior to 1 February 2003;

(b) identifying a comparable range for offences committed thereafter, and

(c) identifying the extent to which any increase in sentencing might be ascribed to the effect of the standard non-parole period, properly considered in accordance with the principles established in Muldrock."

15 After reviewing the changes in the statutory requirements, I concluded with the following observations at [34]:

"In May 2010 the Judicial Commission of New South Wales published Monograph 33, The Impact of the Standard Non-parole Period Sentencing Scheme on Sentencing Patterns in New South Wales. It compared sentencing in two periods, namely that from 3 April 2000 to 31 January 2003 (before the standard non-parole period provisions) and from 1 February 2003 to 31 December 2007 (after the introduction of the standard non-parole period). With respect to offences of murder which went to trial on a not guilty plea, there were 51 cases in the 'pre-period' and 33 in the 'post-period': p 26, Fig 1. The median full term sentence increased by almost 28% (from 18 years to 23 years) and the median non-parole period increased by almost 18% (from 14 years to 16.5 years). There do not appear to be reliable post-Muldrock figures which might indicate what proportion of the increase resulted from a correct use of the standard non-parole period and what proportion revealed an illegitimate use."

16 The judgment in Muldrock was delivered on 5 October 2011. As the applicant's submissions noted, all the cases relied upon decided after the introduction of the standard non-parole period (and to which it may be assumed that the standard non-parole period applied) were sentences imposed before the judgment in Muldrock. On one view, they might be treated as reflecting no less than the upper limits of an appropriate range. On the other hand, the sentences imposed before the standard non-parole period took effect may fail to reflect the effect of the standard non-parole period which, properly applied, tended to increase the sentences for murder.

17 There is no doubt that the pre-standard non-parole period sentences involved non-parole periods in a broad range from nine to 16 years. The cases to which the standard non-parole period applied involved non-parole periods between 10 and 20 years, although, disregarding outliers, the median appears to have been approximately 16 years, allowing, as best one can, for disparate circumstances.

18 The difficulties in setting an appropriate sentence for a murder in this legally shifting regime warrants a grant of leave to appeal against the sentence imposed, which is not self-evidently within any possible range.

19 The primary reasons for not interfering with the sentence in this case are twofold. The first is that the cases reveal considerable disparity in the sentences imposed, which makes it inherently difficult to identify a "range" beyond which a sentence is manifestly excessive. Secondly, although a reduction from 18 years to 16 years is a significant period of time (two years), proportionately it is a reduction of only 11%. Whether such limited interference would be warranted, for the purposes of s 6(3) of the Criminal Appeal Act, might be open to doubt.

20 Despite these considerations, in my view the severity of the sentence was not warranted. I would resentence the applicant to a non-parole period of 16 years imprisonment with an additional term of five years and four months, giving a total sentence of 21 years and four months.

21 R A HULME J: Masood Atai (the applicant) was found guilty of the murder of Ang Van Ly at Fairfield on 24 November 2009 after a trial by jury before Grove AJ in September 2011. He was subsequently sentenced to imprisonment for 24 years with a non-parole period of 18 years to date from his arrest on 10 February 2010.

22 The applicant seeks leave to appeal against both his conviction and sentence. Leave is required in relation to conviction as none of the grounds involve a question of law alone: s 5(1) Criminal Appeal Act 1912 (NSW).

23 The grounds of appeal against conviction are:

Ground 1: His Honour erred in:

(a) refusing to give a warning pursuant to s 165 of the Evidence Act regarding the evidence of 'Yazin' or, alternatively, in

(b) failing to warn the jury of the need to scrutinize the evidence of 'Yazin' with great care.

Ground 2: His Honour erred during his summing up when explaining the significance of the appellant's trial counsel not alleging that a person other than the accused had fired the shots at the house. (SU 22-3)

Ground 3: Abandoned.

Ground 4: The verdict of the jury is unreasonable and not supported by the evidence.

Overview of the Crown case

24 Mr Ly died as a result of a gunshot wound to the head which he sustained as he stood in the doorway of a front bedroom in a home in Cathcart Street, Fairfield at about 11pm on 24 November 2009. The fatal shot was one of a number that had been fired from a handgun from a location in front of the home.

25 Prior to the killing a convoy of four cars occupied by approximately 14 people had been driven to a park a short distance from Cathcart Street. At about 11pm that group walked to Cathcart Street where two of the men from the group approached the home where the victim was socialising with other men. It was the Crown case that those two were the applicant and a man described as an "Islander". The Islander male approached and knocked on the front door. He enquired after "Johnny". When an occupant of the home indicated that no one by that name was present, the Islander and the applicant returned to the grass verge in front of the property. There, according to the Crown, the applicant stopped and produced a handgun which he discharged a number of times in the direction of the home.

26 The issues at trial were whether the Crown could establish beyond reasonable doubt that it had been the applicant who had discharged the gun. In the event that the jury was satisfied of this, it was then an issue as to whether he had discharged the gun with an intent to kill or cause grievous bodily harm, or did so with reckless indifference to human life in that he discharged the weapon notwithstanding he foresaw the probability of a death occurring

27 The Crown case in the first of those two respects depended upon the evidence of a man who was referred to as "Yazin". He gave evidence that he knew the applicant; he had been one of the group near to the subject home at the time of the shooting; and he had seen the applicant shoot at the house.

28 The defence case did not involve any denial or dispute that the applicant had been present in the vicinity of the home. But it was disputed that he was the shooter. The primary focus of the defence case was an assertion that Yazin was lying. It was also argued in closing address to the jury by counsel then appearing for the applicant that even if the jury were satisfied that the applicant was the shooter, they would not be satisfied that the applicant had any of the relevant mental states to make out the charge of murder. That is, it was contended that the jury would find him guilty of manslaughter instead.

29 The Crown readily conceded that the proof of guilt of the applicant depended upon the jury's acceptance beyond reasonable doubt of the essential aspects of the evidence of Yazin.

Evidence review

30 Because of the ground asserting that the verdict is unreasonable or not supported by the evidence it is necessary to review the evidence in some detail, particularly that of Yazin.

31 Yazin said that he met the applicant, whom he knew as "Chocolate", in 2009 at an address in Eddy Street, Merrylands. As at 24 November 2009 he had only met him on about three occasions.

32 He said that between 8pm and 9pm one evening in late November 2009 he received a call from the applicant asking him to come to Merrylands. He drove there and entered the Eddy Street home. Present were the applicant, PJ, Saboon and Masieh Amiri. The applicant told him that they were "going fishing" and Yazin told him that he was not happy about this because he had been busy helping his mother. The applicant told him to sit down and relax.

33 Some time later a number of cars arrived. The applicant went outside to talk with the occupants. Yazin said that he could see them through the window and described four of them as being of Islander appearance and three of Lebanese appearance. The eighth person was SZ, also known as "Deen". The applicant then came inside and said, "Let's go".

34 (SZ stood trial with the applicant on a charge of accessory after the fact to murder. He was acquitted. There is no issue in the present application concerning that fact.)

35 Yazin and the others followed the applicant out to the cars. The four Islander men got into a blue BTR hatch, the driver of which was a blond woman of Australian appearance (identified in other evidence as Leanne). Yazin, Faisal and another male referred to as Faisal's relative got into a white Torana. The applicant got into a red car. SZ was part of the group but Yazin was not sure which car he was in. There were a total of four cars driving in convoy.

36 The convoy first went to a housing complex where they met a group of males whom Yazin did not know. Yazin, Faisal and Faisal's relative stayed in the car whilst the others got out and spoke with the group for about 15 minutes. Then they all drove to a service station which was nearby where Leanne refuelled her car. Whilst there, the applicant and SZ went into the shop. (There were still photographs from CCTV footage at the service station which supported the presence and movements of people at this location). There was evidence from other witnesses in the trial supportive of an inference that the applicant and or SZ stole a pair of rubber dishwashing gloves from the cleaning products aisle in the service station shop.

37 Yazin said that all four cars left the service station and headed towards Fairfield where they stopped in front of a park. Everyone except Leanne alighted and hung around the park for about 45 minutes. At some point, Yazin saw the applicant, SZ, Masieh Amiri and one of the Islander males leave in Amiri's car. They were gone for 30 to 40 minutes.

38 According to Yazin, when those people returned to the park the applicant had a conversation with the group. Yazin was sitting with Faisal some distance away and did not hear what was being said. At the end of the conversation, Yazin heard the applicant say, "Okay, let's go". All of the males then followed the applicant on foot.

39 The group went across the road through a grassed area into the next street. When they stopped, Yazin heard SZ say to the applicant, "Let me hold it". The applicant replied, "No, no, no, I've got it". They crossed the road some distance from the house where the shooting took place. It was Yazin's evidence that he and most of the other males were crouching down on the footpath. He was crouching down about two houses away from the house that was shot at. He identified this by marking a location on a photograph (Exhibit O).

40 Yazin said he saw the applicant and one of the Islander males approach the house. They walked up the driveway towards the house but he then lost sight of them because of a fence that blocked his view. He then heard knocking on the door but did not hear the door open. He then saw the applicant and the Islander male return to his line of sight at the front of the driveway. He then heard a window open and heard the Islander male ask if "John" was there. He heard a male voice reply that no one by that name lived there. The voice came from inside the house. He then heard another voice ask, "What do you want?" He said the applicant replied that they wanted to buy some "weed". The second voice replied that there was no such thing there and told them to "get out of here".

41 Yazin said that he saw the applicant take two or three steps back. His body was facing in Yazin's direction but his head was facing the house. He reached for a firearm with his right hand at his waist and then shot at the house. He described the weapon as an old revolver. He said he heard four shots. Yazin panicked and he and the other males ran to the cars and drove off.

42 They returned to the Eddy Street, Merrylands address. PJ, Saboon and an Afghan male were already there. The applicant arrived a short time later. PJ asked the applicant what had happened but there was no reply; the applicant pointed at the ceiling and the walls and put his finger across his mouth.

43 The applicant then went to the bathroom and returned without his shirt on and sat down. He had a gun in his hand and gave it to PJ. PJ opened it and emptied the bullets into a cup or a bag. He indicated the number four with his hand and said, "Fuck fuck, there is only two left". Yazin left soon after and did not know what happened to the gun or the bullets.

44 Yazin also gave evidence that he had seen the gun, which he described as a "cowboy type gun", for the first time two days earlier at the Eddy Street house. On that occasion the applicant had been wearing it at his waist. He provided a description of the weapon which included that it was a revolver.

45 The day after the shooting, Yazin went to the Eddy Street home after receiving a call from Masieh Amiri. When he got there he saw the applicant, Amiri, Faisal, PJ, Saboon and two other males he did not know. They all went outside the house and the applicant told them that what had happened the previous night was not to be mentioned again, especially not to the police. He threatened them with death if they spoke to the police. He said the applicant told them that there had been four Asian males at the house. He said they all had guns and a couple of them had tattoos and they were all in the backyard. He claimed that "if he hasn't done what he did, we'd all end up being shot". PJ told the applicant that he needed to get rid of his clothes and someone else told him to get rid of the gun.

46 There was no issue about Yazin's ability to identify both the applicant and SZ. He later identified them from a police photo array but there was no issue raised about that aspect of the evidence.

47 Matters raised in the cross-examination of Yazin will be referred to later in the context of some of the grounds of appeal.

Witnesses who were in the convoy

48 Leanne gave evidence that she was driving a blue Hyundai i30. She drove various males to various locations which she described without a great deal of specificity. The passengers in her car were primarily of Islander background but at times there were others. Her evidence supported the proposition that gloves were taken from the service station. Her evidence was consistent with that of Yazin in that after they had arrived at the park she drove some of the males away to another location before returning. Once back at the park she remained at her car while the males walked away. She said that after about 15 minutes she heard four or five loud bangs and then saw the men running back to the cars. One of the passengers who had been in her car earlier, Pena Tulemau, told her to "go go go". She was directed to drive to other locations which did not include the Eddy Street, Merrylands address. Her evidence was that she was first approached by police in December 2009 but did not tell them the truth about what had happened on the night because she was scared "they" would do something to her. She was again spoken to by police in January 2010 when she told them the truth.

49 Charles Varu gave evidence that he was one of the passengers in the blue car driven by a female he knew as "L" (obviously Leanne). His evidence was that they drove around and met up with a number Iraqi males. They drove to various locations including a service station where Leanne refuelled. At that point there were now about four cars travelling together. He said that at one point the males stopped at a park for some time before they walked towards a house and he followed. He spoke of some of the group walking towards a house where, he was later told, Pena (Tulemau) knocked on the door. He did not hear any conversation. He then heard three gunshots and said everyone then turned and ran.

50 Mr Varu said that he did not see anyone with a gun that night and did not see anyone do the shooting. They then drove home. Mr Varu denied handling a gun that night and denied shooting anyone.

51 Moeakiola Tunitau Usaia gave evidence that he knew a female he called "L". His evidence was of little credibility; he claimed that he was too "wasted" to remember whether some people were with him. He had been drinking and taking drugs all day. He could not remember whether he had shot anyone in Fairfield on 24 November 2009. But he gave a straightforward "no" when asked whether he had a gun in his hand at any time that night.

52 Masieh Amiri said that he was friends with the applicant, whom he knew as Chocolate, and the co-accused Deen. In 2009 he drove a black Holden Astra. He said that in relation to the evening of 24 November 2009 he could not recall anything. He agreed that a car shown in a photograph taken at the service station in question depicted his car. He did not know the person in the photograph shown getting into his car. He denied shooting at a house in Fairfield on the relevant evening.

53 Pasoon Jadran claimed that he had never heard anyone refer to him as "PJ". His brother was Saboon Jadran. He knew the applicant and SZ but denied ever being at the house in Eddy Street, Merrylands when either one of them was present.

54 Mr Jadran said that he knew the applicant from the Afghan community but did not socialise with him and had not been at the house in Eddy Street with him. He said that he did not handle or see a .38 calibre revolver on 24 November; the last time he saw a gun was in Afghanistan many years ago. He denied shooting a gun at a house or at all on the relevant night.

55 Saboon Jadran was Pasoon Jadran's brother. He denied knowing the applicant and SZ. He could not remember where he was on the relevant evening but denied handling a .38 calibre revolver and denied seeing a gun that day. He specifically denied shooting at a house in Fairfield.

56 Faisal (who said he only had one name) denied knowing the applicant, SZ, or the people who lived at the home in Eddy Street, Merrylands. He knew both Pasoon and Saboon Jadran and knew their family from Afghanistan and said they were friends. He denied having fired any guns or seen any guns since he left Afghanistan four years earlier.

57 Faisal Nasri knew the applicant and SZ but could not remember being with them at the Eddy Street home on 24 November 2009. He did not know the people who lived at that address but did know Saboon and Pasoon Jadran. He denied having been at a house in Merrylands with them. He denied knowing Yazin and said he had never been at a house in Merrylands when a car with Islander males came; he did not associate with Islanders. He could not recall going to a service station with Faisal and Yazin in his car. The last time he heard gunshots was in Afghanistan in 1994. He did not handle a gun on 24 November 2009 and denied shooting at a house in Fairfield.

Occupants of the house

58 Sovannara Chhim (also known as "Pov") had lived in the house for about three months. On the night of 24 November 2009 he had five friends over; they ate together and watched television. All of them (aside from the deceased of course) gave evidence. Its combined effect was that there was a knock at the door and, when it was answered, there was a brief conversation with an Islander male who was asking for "John". He was told that no such person was there and walked away. One of the occupants, Mr Palin Ung, spoke further with him through the open window of the bedroom on the front left side of the house (as viewed from the street). He asked if everything was alright and the man replied, "Yeah, everything's cool". In cross-examination he was asked if the man had said, "Hey bro', I just want to buy some weed" (as Yazin had claimed). He was not sure; allowed for it to be possible; but agreed it did not appear in the statement he gave only hours after the event.

59 After the person he spoke to walked away, Mr Ung saw shots being fired by another man from near the front boundary. None of the occupants were precise about the number of shots; estimates ranged from "two to three" (Mr Chhim) up to "around four, five" (Mr Ung). The deceased went to the floor near the doorway of the bedroom. The other occupants fled to the rear of the house. After they emerged they realised the deceased had been shot and the police were called.

60 Although Mr Ung saw the man who was firing the shots he was only able to give a limited description because it was dark: male; not big; medium tall; something like 1.8 metres tall; thin to medium build. He also gave the following evidence (after saying the man was "a good 10 metre, 12" metres from the bedroom window and confirming it was night-time):

"Q. So how were you able to see a person 10 or 12 metres from you?

A. As I was saying, I didn't see, I can sort of just picture out what detail he had. But not in face or structure wise. Quite sure it was a male, and because it was dark, I was assuming because the Islander dark as well.

Q. Could you see the colour of his face?

A. No. Not that the distance, no." (AB 345)

61 Mr Ung made the call to triple 0. The recording was played to the jury and a transcript was provided. After despatching the police to the scene the operator asked Mr Ung for information. When asked if he saw the gunman, he said, "Um, no, is two Islander" and later:

"Mr Ung: Is two Islander I think, yeah, I'm pretty quite sure is two islander.

Operator: Two of them?

Mr Ung: Yeah, two islander. One, one ah, overweight one obese and the other one is um, an average weight.

Operator: And they were both pacific islanders?

Mr Ung: They were both islander.

He provided a description of the one with the big build before continuing:

Mr Ung: The other guy's thin build and both were about a hundred and eight, a hundred and eight-five centimetres tall.

Operator: ... The second guy is he's - -

Mr Ung: The second guy is um, slim build, he's dark as well. Ah, he's wearing I think a dark jacket.

Operator: Which one had the gun?

Mr Ung: Um, the thin guy."

62 In cross-examination Mr Ung confirmed that he said in his police statement that the second man was skinnier than the first who was very big and overweight; he was about 185 cm tall; he could not see his face because it was dark; he could not make out his features but he "wasn't white" which "would have showed up in the lights"; and he had black wavy hair that was messy and went "somewhere near just around the neck area". He also said that this man was wearing a dark, maybe black, fluffy jacket.

63 The occupants confirmed that none of them had guns. Four of them were asked in cross-examination by the applicant's counsel whether they had tattoos and the response was negative. (Yazin claimed the applicant had said the following day that the men in the house were Asian and all had guns and a couple had tattoos.)

Paramedics and first police to the scene

64 Police starting arriving at the scene from about 11.10pm. Paramedics found the deceased to be in a grave condition with an apparent gunshot wound to the right temporal region. He was transported to hospital but did not survive. An autopsy confirmed that he died of a single gunshot wound. (And he had no tattoos.)

Ensuing investigation

65 Police recovered security camera footage from a neighbouring home. It revealed that at 22:52:42 the light was turned on in the front bedroom. At 22:53:05 there was a momentary flash of light below the lit window. The porch light was turned on at 22:57 and a person came outside and stood next to the front bedroom window. The first police arrived at 23:09:42.

66 The shooter and those who accompanied him arrived in the general vicinity in four motor vehicles which were parked more than a block away from a house where the shooting occurred. They approached on foot from an adjoining street and turned right into Cathcart Street. The house where the shooting occurred was four doors down on the left-hand side.

67 The house itself was a modest three bedroom suburban home with fibro cladding. There was a small front yard with no fence. The front of the house was about eight to ten metres from the front boundary. There was a grass verge between the front boundary and the kerb of the roadway. At the time the men attended the home there were two cars parked in the driveway, a third vehicle parked partially on the front lawn, another vehicle on the grass verge, and a large truck parked on the roadway immediately outside.

68 The front of the house was comprised of two bedrooms with the front door leading to a hallway in the middle. The bedroom in question was on the left-hand side as the house was viewed from the street. The driveway was on the extreme left-hand side of the block abutting a Colorbond fence. The final panel of the fence before the front boundary angled downwards.

69 There was evidence to the effect that the shooter would have been in a position about 11 metres from the window of the left hand bedroom. That would have placed him on about the right-hand side of the driveway on the grass verge.

70 The body of the deceased was found in the hallway in the vicinity of the doorway leading into the bedroom.

71 The combined effort of the evidence of a crime scene officer and a ballistics officer was that there was one bullet hole above the window of the bedroom immediately under the eave. This was 3 metres from the ground and 1.4 metres from the left-hand corner of the house. This bullet entered the bedroom high on the wall above the window, ricocheted off the ceiling and entered the wall on the opposite side of the room. There was another bullet entry hole 2.2 metres from the ground just around the corner from the front of the house. This bullet entered the bedroom about 1.8 metres above the floor and about 90mm from the front corner. Its trajectory was outside to inside and upwards. Another bullet entry hole was found in the flyscreen attached to the front window of the bedroom. It was about 1.4 metres above the ground and 1.8 metres to the right of the left-hand corner of the house. The ballistic officer's opinion was that there was no other damage to the bedroom that related to that bullet (so, by inference, this was the one that struck the deceased).

72 The ballistics officer was asked whether the evidence enabled him to determine how many shots were fired. He considered there were "at least three shots fired".

73 It can be seen from the above that there were only three points of entry of bullets fired into the house. The ballistics officer agreed in cross-examination that if there was a fourth shot the bullet did not appear to have entered the house.

74 Some of the bullet fragments and a piece of damaged copper jacketing recovered from the bedroom as well as the damaged bullet recovered from the deceased retained insufficient detail to enable microscopic examination. The possibility of a second firearm having been used could therefore not be excluded.

75 One of the ballistics officers said that an impact damaged bullet and the damaged copper jacket could only be determined to be of either .38, .357 or 9mm calibre. He said, "the 38 and 357 are generally used in revolvers, and the 9mm calibre cartridge are generally used in self-loading pistols".

76 Finally, in relation to the spread of bullet entry holes, the ballistics officer agreed that it was over an area of almost two metres.

77 Professor John Fryer, head of the School of Engineering at Newcastle University who held a PhD in surveying photogrammetry, was the witness who gave the estimate of the gunman standing 11 metres from the bedroom window. He also explained that possible explanations for the security camera footage only showing one flash were that the gunman was outside the field of vision of the camera when other shots were fired or that they were obscured by a telegraph pole. He conceded that he was not a ballistics expert but said that the gunman would have to have been in a different position, more to the left when looking from the street, when the shot was fired that penetrated the side wall near the front corner of the house.

Telephone intercepts

78 Police obtained a telecommunications interception warrant on 27 November 2009 and thereafter monitored the applicant's phone until 25 January 2010. Recordings and transcripts of ten conversations were in evidence. All but one of the conversations were between the applicant and his co-accused. They used the English and Farsi languages interchangeably. It was the Crown case that they spoke in code but it could be discerned that some of the conversations concerned the co-accused getting rid of the gun used by the applicant in the shooting. That was very much a matter of inference; there was nothing explicit.

Ground 1(a) - refusal to give a warning pursuant to s 165 Evidence Act concerning the evidence of Yazin

79 Before dealing with this ground it is worth recalling that the issues in the case were twofold: (1) did the jury accept the evidence of Yazin that the applicant was the gunman or was he, as the defence contended, lying in that respect and (2) if he was the gunman, with what mental state did he fire the gun?

80 It is also worth noting that the defence case did not deny the presence of the applicant at the scene. It also did not involve any assertion that Yazin was more involved in what occurred than he said he was (namely, he was merely present).

81 Yazin made his first police statement on 2 December 2009. He did not mention a number of matters that he later disclosed in his second statement made on 11 March 2010. In the first statement he said he was three or four houses away when the applicant and the Islander male entered the front yard of the house where the shooting occurred. All he said was that the applicant and the Islander male walked into the property and then his view was obscured by the side fence; he did not hear any knocking on the front door or any conversation; and about a minute later he heard three or four gunshots. He explained that at the time of making the first statement he was fearful for his and his family's safety. But he was subsequently threatened and harassed to the extent that he realised there was no point in withholding information so he went back to the police on his own initiative and told them all that he knew in the second statement.

82 The applicant's case that was put to Yazin (and denied) was that on the approach to the house he did not hear the applicant respond to SZ's request to hold the gun by saying "No, I've got it". He did not hear the applicant say anything about "weed". He did not see the applicant produce and fire a gun, or have a gun at any time that night. He did not see him go into the premises at Cathcart Street.

83 In relation to subsequent events, it was put to Yazin (and denied) that back at Eddy Street after the shooting he did not see the applicant give a gun to PJ who emptied bullets from it. The applicant did not say anything about four Asians with tattoos and guns. He did not make any threats about people talking, especially to the police. No-one told the applicant to get rid of his clothes and the gun.

84 Far from suggesting that Yazin was more involved than he was prepared to disclose, the following proposition was put to him (and denied):

"Q. And I'm putting to you that the truth is that you were at the back of the group of people crouching down and heard gunshots and that was it; you ran away after that and you don't know what happened; isn't that right?"

85 Trial counsel (who did not appear in this Court) attempted to make a strident attack upon the credibility of Yazin in his closing address. Some of the more significant matters he referred to and points he endeavoured to make were:

(a) Yazin was a liar.

(b) His evidence that the applicant's name came up on his phone when he received a call summoning him to Eddy Street was untruthful. Telephone records showed no such call made from the applicant's phone. (Counsel had asked in cross-examination whether it could have been someone else who rang up and asked him to come to Eddy Street. (AB402) But it was never positively asserted that it was not the applicant and he was never confronted with the telephone records.)

(c) Yazin was the only witness who incriminated the applicant. When a prosecution is dependent upon a single witness it is common sense to approach such evidence with considerable caution.

(d) "He's a person who might be criminally involved." (This was never suggested to Yazin.)

(e) The jury might think he did not disclose certain things in his first statement and claimed that he was further away from the scene because he was worried about his involvement.

(f) "People like that" might shift the blame from themselves onto others, or might want to justify or play down their own conduct. They are known to blame innocent people. Sometimes these things are done from motives of revenge or malice or dislike. (No such suggestions had been made to Yazin.)

(g) The description given by Mr Ung of the gunman was in conflict with Yazin's claim that he was the applicant.

(h) Yazin said the front door was not opened in response to the knocking. (But he said that this was something he assumed because he did not hear it being opened. (T128))

(i) Yazin claimed the porch light was on, but the security camera footage from the neighbouring home showed that it was not (although the front bedroom window light was on).

(j) The account of the applicant handing a gun to PJ back at Eddy Street was not provided by Yazin in his first police statement.

(k) He could not recall anything about the pants the applicant was wearing.

(l) He did not see cars parked in the driveway and front yard and a truck parked on the street in front of the house in question.

(m) Yazin said in his first police statement he heard three or four gunshots but in the second statement said it was four.

(n) He said in his evidence that he heard an occupant of the house saying that no-one by the name of "John" lived there, but this did not appear in either of his police statements. (But it was consistent with the evidence of the occupants.)

86 The learned trial judge said the following about the evidence of Yazin at an early stage of his summing up:

"It is perhaps important that I say at this stage, because it has been said on a number of occasions, that although the Crown made reference to the evidence of the witness Yazin beyond reasonable doubt, it is not the case that you have to accept beyond reasonable doubt every single utterance that he made. In due course I shall explain to you what are the essential elements of the crimes that are charged, and insofar as Mr Yazin is an important witness, it might be perceived that within his evidence what is needed to persuade you beyond reasonable doubt is his identification of the accused Atai as the person who fired the pistol at [xx] Cathcart Street and nobody else.

But it is not the case, as has been said to you once or twice, that you have to accept beyond reasonable doubt in the sense that you have to be satisfied beyond reasonable doubt that everything that he said when he was in the witness box. For example, it was said to you not so long ago that there was evidence from Mr Yazin that he could not see any vehicles parked on the footpath and outside the premises. You were taken to Exhibit C, which shows that there were cars all over the place outside the front, and you remember you got some photographs that show you cars about the front there. It is not required that you are satisfied beyond reasonable doubt that Mr Yazin is right about that. It may be that it is of assistance to you in deciding whether he is right or wrong as to whether you accept him or otherwise, but as I have said to you now several times, what the Crown has to prove beyond reasonable doubt are the essential elements of the crimes that are charged, and in due course I shall give you some precise directions in relation to that."

87 A little later his Honour gave unremarkable directions about the standard of proof and the Crown bearing the onus. It is something that he reiterated at various other points of the summing up as well. After dealing with other matters, including the essential elements of the offences charged against the applicant and his co-accused, he turned to a review of the cases advanced by the parties. He commenced with the Crown case:

"However, in very short summary, the Crown case as I understand it against Mr Atai is one in a sense of exquisite simplicity. The Crown simply says on 24 November 2009 Ang Ly was shot and he died as a result. Nobody in this case seems to doubt that. The essential issue the Crown says is well, who fired the shot? The Crown says the evidence is that Atai fired the fatal shot. No-one else did. Any of the witnesses who were available who were there at the time, all said they didn't fire a shot.

You will have noticed, although it's a matter for you, that those who said that they didn't fire a shot were not challenged as to that statement. It is of course open to you to make such assessment as you wish, but it's frequently the case that if a challenge is to be forthcoming, then you would hear about it. All I am observing, although it's a matter for you, is that each of the persons who were available whom you know of as being at Cathcart Street said that they did not fire the fatal shot.

The Crown says well you have the evidence of Mr Yazin who did come forward and said he saw it, and I have already observed to you that the critical part of his evidence upon which the Crown relies is that he says he saw Mr Atai do it. You will of course, I am sure, look at the whole of the context of his evidence to decide whether that is acceptable to you. But that it is entirely a matter for you."

88 Before concluding his summing up his Honour invited counsel to make any applications for corrections or further directions. There was the following exchange with the applicant's counsel:

"[COUNSEL]: I was going to mention to your Honour if your Honour would consider an unreliable witness warnings under section 165 of the Evidence Act on the basis that Mr Yazin may have been criminally involved in the enterprise.

HIS HONOUR: What do you want to say about that?

CROWN PROSECUTOR: The Crown would oppose such a direction. Here there is no suggestion of any criminal activity.

HIS HONOUR: He talked about involvement, but I don't know about criminal involvement. Where is that page?

[COUNSEL]: Transcript 137, line 40, was one of them, your Honour, (Read).

HIS HONOUR: That is very different from having been involved. If that is an application for a section 165 direction based on what appears at line 44 at page 137 of the transcript, I merely repeat, as I pointed out to counsel, that it is not a reference to having been involved criminally, but rather to being involved, presumably to the inconvenience and risks that are attended to all persons that are involved in criminal litigation, whether as witnesses or otherwise." (AB 46-47)

89 The evidence referred to in that exchange arose in cross-examination by the applicant's counsel and was as follows:

"Q. And so, the words that you say Chocolate used about asking for weed, they are left out [of the 2 December 2009 statement] because they protect your family somehow, is that right?

A. It protects what I might have heard and what the conversation might take place, yes, I thought it might in other words help me, like it might even stop me from becoming involved." (Emphasis added) (AB 441)

90 The emphasised words in that extract, in the context of Yazin's frequent explanations about his motive for saying what he said and excluding a number of things in his first police statement, makes it clear that "involved" must be understood in the way the trial judge understood it: he was reticent about becoming involved as a prosecution witness because of his concerns for his safety and that of his family. It did not convey anything to the effect of criminal complicity in the events in Cathcart Street.

91 The request for a s 165 warning set out above occurred after the jury had been released for the day. No further submissions were made by the applicant's counsel either that afternoon or before the summing up resumed and concluded the following morning.

92 Section 165, relevantly, is in the following terms:

"(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

...

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,

...

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury."

93 In this Court it was submitted that a warning was required not only on the basis advanced by trial counsel (which may be put aside because it was based upon a misapprehension of the evidence) but also for a number of other reasons that essentially fall into two groups:

The group of persons who went to the address in Cathcart Street parked their cars in a nearby park and approached on foot late at night. A number of them hung back and took measures to avoid being seen. Yazin said that when approaching the house he overheard a conversation concerning a gun. After the shots were fired the group departed rapidly. He said that he had seen the applicant with a gun two days before the incident and saw him again with it upon the return to Eddy Street. Thus, it was submitted that "the evidence allows the conclusion to be reached that [Yazin] was, to some level at least, criminally involved in the events of the night. The principles of joint criminal enterprise may have rendered him liable for the primary offence."

Yazin made no attempt to contact police after witnessing the firing of at least three shots with the inevitable subsequent knowledge that someone had died. He was at least liable for the offence of concealing a serious offence (s 316 of the Crimes Act 1900 (NSW)). In addition, he conceded that he had withheld information from the police and in some instances deliberately lied to them regarding important aspects of his account of the events.

94 There were some attempts made in the written and oral submissions to rely upon matters that came to light during the sentence proceedings (for example, the Eddy Street house was the clubhouse for a gang named "Notorious"). There was also a submission that the invitation to Yazin to go "fishing" involved a euphemism for some criminal activity. These were not matters relied upon by the applicant's counsel on the application to the trial judge and were not the subject of evidence or submission before the jury. They may be put to one side.

95 The two bases upon which it is now said that a warning was required ignore the reality of the trial. During the course of the hearing, senior counsel for the applicant found it necessary to concede that the attack upon Yazin's evidence at no stage involved any assertion of his complicity in criminal activity. It was accepted that the cross-examination sought to distance Yazin from involvement, for example by contending that he was further away from the incident and so less likely to have seen and heard the things he claimed. It was also accepted that the application for the warning was "half-hearted".

96 In my view, this ground fails at the first hurdle. There was no evidence that Yazin "might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding". His evidence was that he was present but reluctantly so; and the contrary was not suggested. True it is that the jury might well have thought that this group of men who travelled in convoy; parked cars in an adjoining street; and then approached a particular house late at night and on foot were up to no good. That much was implicit. But without any suggestion of how Yazin, in particular, might have been criminally concerned, directing a jury in terms that he was would have invited speculation as to the foundation for the content of the warning. Even if the view was taken that Yazin may have been criminally concerned in the events giving rise to the proceedings, the vagueness of his complicity would have rendered the task of explaining the basis of the warning exceedingly difficult, if it was possible at all. In other words, there would have been good reason for the judge to decline to give the warning if an application had been made on the basis now advanced (s 165(3)).

97 Moreover, if the trial judge had directed the jury that Yazin was criminally concerned simply on the basis of him being one of the group that went to Cathcart Street, it would implicitly have conveyed that everyone of that group was criminally concerned. This would have included the applicant because there was no dispute that he was there as well.

98 It was submitted that in explaining why the evidence of Yazin may be unreliable, the judge should have given as possible reasons that "he may be attempting to exculpate himself or minimise his involvement by fabricating or exaggerating the role of the appellant or may have fabricated evidence out of motives of revenge or antipathy towards the appellant" (AWS 275). The experience of the courts has shown that these are sometimes the motives of witnesses who may have been criminally concerned in the events: see, for example, R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 at [127] (Howie J). However, there was no evidentiary foundation for the jury to have attributed any of them to Yazin. Trial counsel suggested these things in his closing address (see above at [85](f)) but, aside from reference to Yazin having agreed that the applicant was not a friend, there was no suggested explanation as to how any of these motives might be realistic possibilities. And, more significantly, none were even suggested to Yazin.

99 The fact that Yazin did not voluntarily come forward and tell police everything he knew was put as "perhaps the most telling" of the points relied upon by the applicant. It was submitted that he was "at the least ... liable for the offence of conceal serious offence".

100 This Court has allowed for the possibility that a witness who has concealed knowledge of an offence, may be within the terms of s 165(1)(d): R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at [46]-[73] (Heydon JA, Dowd and Bell JJ agreeing). Heydon JA (at [66]) described inclusion of concealment of a serious offence within s 165(1)(d) as to give it a "controversial construction".

101 In R v Clark, the witness in question gave evidence that the accused had confessed to him after the event. It was not the case that the witness was present or in any way involved in the events directly relating to the crime. That is a point of distinction with the present case. But two aspects of the reasoning of Heydon JA are pertinent. First, he referred (at [51]) to authority for the proposition that an accessory after the fact does not have a motive to falsely inculpate a principal offender because the principal's guilt is the foundation for the accessory's guilt. The same can be said for a witness who has concealed his or her knowledge of an offence. Heydon JA referred to the witness having nothing to gain from establishing the principal's guilt: "he could bring nothing but trouble upon himself by doing so" (at [66]). Secondly, there was the observation (at [57]) that if the witness was to be regarded as falling within the description in s 165(1)(d) it was incumbent upon the defence to elicit evidence to that effect. That was not done in that case, and nor was it done in the present.

102 The respects in which the evidence of Yazin may have been unreliable was limited to those that trial counsel chose to explore with him in cross-examination. They were matters that were readily understandable by a jury without the trial judge providing information based upon the experience of the courts and not commonly understood in the general community. A warning that the evidence may be unreliable was not called for in such circumstances: see, for example, Kanaan v R [2006] NSWCCA 109 at [116] (Hunt AJA, Buddin and Hoeben JJ).

Ground 1(b) - failure to warn the jury to scrutinise the evidence of Yazin with great care

103 The applicant's submissions acknowledged that the directions given by the trial judge did emphasise the central importance of Yazin's evidence but complained that "they did not amount to a warning". At no stage did his Honour direct the jury that before accepting Yazin's account they were required to scrutinize his evidence with great care.

104 The direction it is contended the judge should have given is often known by the shorthand expression, a "Murray direction". It is derived from R v Murray (1987) 11 NSWLR 12 where, at 19, Lee J stated:

"The fact that a judge does not comment upon the absence of corroboration of the complainant's evidence cannot, in my view, in the case of those offences to which s 405C applies now be made the basis of a criticism of his summing-up, but again this does not mean that the judge cannot or should not, as is done in all cases of serious crime, stress upon the jury the necessity for the jury to be satisfied beyond reasonable doubt of the truthfulness of the witness who stands alone as proof of the Crown case. In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable."

105 R v Murray was cited with approval by the High Court in Robinson v The Queen [1999] HCA 42; 197 CLR 162 at [21]. That case stands as authority for the proposition that such a direction should be given in a case in which there is a perceptible risk of a miscarriage of justice if the jury is not warned of the need to scrutinise the evidence in question with care before arriving at a conclusion of guilt.

106 There was no request made to the trial judge for such a direction. Rule 4 of the Criminal Appeal Rules is therefore engaged and leave to rely upon this ground is required. In R v Burt [2003] NSWCCA 248; 140 A Crim R 555 at [70]-[71] (Wood CJ at CL) it was observed that the absence of a request does not foreclose the issue; a judge is under a duty to give such directions as the case properly requires; and the question for this Court is whether or not the omission resulted in a risk of miscarriage of justice. But, in the circumstances of that case, leave under r 4 was refused on the basis that:

"[74] While it may have been desirable, for his Honour to have given a Murray direction, there can be little doubt that the jury were made aware of the need for them to examine the complainant's evidence with great care."

107 It was submitted that the failure by trial counsel to seek a Murray direction could not be explained by any tactical forensic consideration. The applicant could not have been disadvantaged in any way if such a direction was given. (6.3.14 at T14.1) The Crown countered by arguing that trial counsel may have refrained from seeking such a direction (which, I interpolate, is, unless accompanied by the arguments of the parties for and against acceptance of the witness' evidence, little more than a means of emphasising the standard of proof) out of concern that the judge might have reminded the jury of some of the reasons given by Yazin for shortcomings in his initial account to police (he had been threatened and was in fear for his family and himself).

108 The written submissions for the applicant listed a number of "problems" with the evidence of Yazin which, together with the fact that the prosecution case was completely reliant upon it to secure a conviction, warranted a "warning". The "problems" were essentially of the same nature as the various matters raised in the course of closing address of the applicant's counsel: see above at [85].

109 In oral submissions, Mr Game SC took the Court to various aspects of the Crown Prosecutor's closing address to the jury. It was acknowledged that the prosecutor accepted "the case against Mr Atai depends very much upon Mr Yazin, without whom it wouldn't be a case, so you do have to believe Mr Yazin. You do have to accept his evidence beyond reasonable doubt, in the very important areas that he gives you evidence". (AB 706.11) But the Crown Prosecutor then invited the jury to "have a look at what supports him". The matters she then identified were matters that supported his evidence in a general sense but not in respect of his identification of the applicant as the gunman. I interpolate that if there was other evidence of that, there would be no occasion for the judge to be directing the jury about a case dependent upon a single witness. It was also submitted, in effect, that the prosecutor failed to effectively deal with the "problems" with the evidence of Yazin, or made submissions to counter them that were not based in evidence.

110 In the course of trial counsel's closing address, throughout an array of criticisms he sought to make of the evidence, there was repeated emphasis upon the Crown's reliance upon the evidence of Yazin. For example:

"I would now like to draw to your attention [to] some of the issues that arose in cross-examination. I do this because as the Crown's told you, you have to believe Yazin beyond reasonable doubt." (AB 769.10)

111 Shortly before concluding his address counsel repeated the point (for at least the sixth time):

"Members of the jury, you have to, the Crown says, believe Yazin beyond reasonable doubt to get to the first point, was my client the shooter ...."

112 The closing addresses of the prosecutor and counsel for the co-accused occupied Monday 19 November 2011. Counsel for the applicant addressed from the beginning of Tuesday 20 November and the trial judge's summing up immediately followed. A review of the entirety of the closing addresses leads me to the view that before the jury had heard a word from the trial judge in summing up, they would have been in no doubt whatsoever that (a) the Crown bore the onus of proof to the standard of beyond reasonable doubt; (b) the Crown case in respect of the applicant was dependent upon acceptance of the truthfulness and reliability of Yazin's evidence identifying the applicant as the shooter; (c) there were many aspects of that evidence which were said by the defence to be untruthful or at least unreliable; and (d) before they could return a verdict of guilty the jury would need to conclude that none of the criticisms raised a reasonable doubt about the essential aspects of Yazin's evidence.

113 I have earlier noted (at [86]-[87]) what the trial judge said in his summing up about the evidence of Yazin. It is worth repeating one aspect:

"The Crown says well you have the evidence of Mr Yazin who did come forward and said he saw it, and I have already observed to you that the critical part of his evidence upon which the Crown relies is that he says he saw Mr Atai do it. You will of course, I am sure, look at the whole of the context of his evidence to decide whether that is acceptable to you. But that it is entirely a matter for you."

114 Thus the jury were told that they should not only look at the evidence in terms of the critical matter, whether the applicant was the gunman, but that they should evaluate that in the context of all of the evidence.

115 It might have been a useful precaution for the judge to have directed the jury in the terms of R v Murray, if only to forestall potential argument in this Court as to whether or not he should have. But I am left in no doubt that the jury in the applicant's trial would have been well and truly aware of the need to scrutinise the evidence of Yazin with great care. The fact that they sought a transcript of it lends further support to this.

116 I am not persuaded that there was any miscarriage resulting from the omission to give a Murray direction.

Ground 2 - error in explaining significance of trial counsel not alleging that another person had fired the shots

117 This ground relates to a passage of the summing up extracted earlier (at [87]). In short, the judge observed that the Crown said it was the applicant who fired the fatal shot; all of the witnesses who were available who were there said they did not fire the shot; none of those witnesses were challenged about their denial; and if there was a challenge, the jury would have expected to hear it.

118 It was submitted that the judge had "undermined the onus of proof" and so, despite no complaint having been raised by the applicant's counsel, r 4 had no application: R v Soto-Sanchez [2002] NSWCCA 160; 129 A Crim R 279. In that case the trial judge committed what was described as "a fundamental error" in directing the jury concerning the onus and standard of proof. He undermined the onus of proof by directing, in effect, that the accused must be acquitted if the jury were satisfied on the balance of probabilities of his exculpatory version of events. It was held by Stein JA (Sully J and Smart AJ agreeing) (at [23]) that the error "went to the very root of the trial" and that there was thereby a miscarriage of justice.

119 It was submitted that there could have been no tactical advantage sought by trial counsel refraining from asking for a redirection or withdrawal of the observation and, in any event, it would have been difficult for the judge to have fashioned any redirection to effectively prevent the jury from engaging in an impermissible mode of reasoning.

120 Counsel for the applicant in this Court complained in written submissions that it was never his case that he was present when the shots were fired, or had seen who had fired them. Accordingly it was not possible for there to have been any challenge to the denials of witnesses that they had fired the shots. (AWS 285) This was clarified at the hearing; there was no suggestion at trial that the applicant was not present but it cannot be assumed that through his mere presence he knew who fired the gun.

121 Counsel for the applicant characterised what the judge had said as inviting the jury to exclude the possibility of those witnesses who had been present at the scene having fired the shots because the defence had not disputed their denials. Exclusion of that possibility made it easier for the jury to more readily accept the evidence of Yazin and to move to the conclusion that the applicant was the gunman.

122 The Crown contended that the impugned direction did not suggest, even implicitly, that there may have been any obligation on the applicant to nominate who the shooter was. Given the repeated directions about the applicant bearing no onus of proof, and that it was the Crown who had asked the relevant witnesses whether they had fired the shots, it was submitted there was no possibility of the jury having acted upon a reversal of the onus of proof.

123 The Crown also submitted that the evidence of those who had accompanied the applicant and Yazin to Cathcart Street was obviously unsatisfactory. In addition, there were some who were identified but who did not give evidence and others who had not been identified. Accordingly, it would have been well open to the jury to consider the possibility of any of those people having been the gunman rather than the applicant.

124 There is an element of imprecision in what the trial judge said on this subject. The Crown characterised it as "a matter of some opacity". The judge referred to the witnesses saying they did not fire a shot and that they were not challenged about that; and if there was a challenge the jury would expect to have heard it. His Honour did not refer to either party as being the source of some expected challenge. The jury might have thought it was significant that the Crown did not challenge the witnesses' assertion; thereby supporting its case that the applicant was the shooter. If the jury considered the fact that the defence did not challenge them either, all that could be made of it is that the applicant did not contend that any of those seven witnesses was the shooter. But that said nothing about whether the defence might either have been silent through lack of knowledge, or was silent because the applicant contended the shooter was one of those who had not been called and so there was no opportunity to mount any challenge.

125 The jury can have been in no doubt that the applicant bore no onus of proving anything. The judge told them that on Friday 16 September 2011 when the evidence came to an end upon the jury being informed that neither the applicant nor his co-accused would be giving evidence. And there is no complaint about the directions given on that subject, and generally on the onus and standard of proof, during the course of the summing up the following Tuesday.

126 Have regard to all of the circumstances I have referred to I am not persuaded that there was any undermining of the onus of proof. (Trial counsel obviously did not perceive that there was.) I am not persuaded that there was any miscarriage of justice. Leave to rely upon this ground pursuant to r 4 should be refused.

Ground 4 - unreasonable and unsupportable verdict.

127 The principles relating to such a ground are well established and often repeated. I do not propose to do so here save to say that a convenient summary appears in SKA v The Queen [2011] HCA 13; 243 CLR 400 at [11]-[14].

128 The primary submission for the applicant concerned the evidence of Yazin which was described as "unsatisfactory", "concocted" or "simply wrong"; it was incapable of establishing the Crown case beyond reasonable doubt. (AWS 296) Reliance was placed upon the same types of matters relied upon in support of the first ground.

129 The Crown acknowledged that Yazin had been deliberately incorrect or had omitted to mention certain matters in his first police statement. But he had provided an explanation for that: he tried to distance himself from the shooting because he was afraid for his own safety and that of his family if he gave the police an accurate and complete account. The Crown referred to the following matters he omitted:

He was only two and not three or four houses away from the residence when the shots were fired.

The conversations he overheard between the occupants of the house and the Islander male and the applicant.

Seeing the gun being fired by the applicant.

That he heard four shots, as opposed to three or four shots.

He later saw the gun at Eddy Street when it was given by the applicant to PJ who emptied the remaining bullets and made a comment.

130 Importantly, in my view, Yazin not only gave an explanation for the errors and omissions in his first police statement, he also explained his decision to come forward and make his second statement:

"Q. At some stage, months later, on the 11th of March 2010, you went back to the Police Station didn't you, to make a statement, didn't you?

A. That is correct

Q. And had your memory improved when you went back to the Police Station?

A. Yes. As I said, I might have left a few things out of the first statement and I was, as I said, for me to believe in helping my family's safety and my safety at the same time, but once I started realising it is not helping at all, kept getting threats, kept getting harassed, that is when I realised, yep, there is no point trying to keep a few things hidden, step up forward and tell everything that I remember, and that is what I went and did."

131 There was no challenge to the veracity of this explanation as was conceded on the hearing of the application. (6.3.14 at T8.15) It was an explanation which was, on its face, rational and credible. It was capable of acceptance by the jury and it would seem likely that they did accept it.

132 All other matters in the list of criticisms of Yazin's evidence in the applicant's written submissions were amenable to rational explanation in favour of the Crown and did not mandate a reasonable doubt about guilt. Conflict with the evidence of Mr Ung about the description of the gunman does not detract from reliability of Yazin's evidence. Mr Ung did not purport to be at all certain that the man was of Islander appearance. He was looking out from the lit front bedroom into relative darkness; his attention was drawn to the man when the gun commenced to be fired; and his observation must have been fleeting.

133 An important aspect of a consideration of Yazin's evidence is that there were some significant matters that were not the subject of any dispute. There was no challenge to his evidence that he had seen the applicant wearing a revolver at his waist two days before the shooting. His evidence of the applicant meeting a number of men outside the Eddy Street address and then coming back inside and saying, "Let's go" was not challenged either. It was suggested in cross-examination that the applicant did not refer to going "fishing" but to "cruising". When they were at the park near Cathcart Street there was a discussion among some of the men that Yazin was not involved in and did not hear, at the conclusion of which the applicant announced, "Okay, let's go". The applicant then led the group on foot into Cathcart Street. The jury could well have considered that the applicant was the leader and most likely the one who would play a principal role in whatever was the intended purpose once in Cathcart Street.

134 In considering a ground asserting the unreasonableness of a verdict it is necessary that the Court "must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses": M v The Queen [1994] HCA 63; 181 CLR 487 at [7]. The assessment of the credibility and reliability of the evidence of Yazin was quintessentially one for a jury to determine and, in the circumstances of this case, difficult for this Court to gainsay.

135 The applicant advanced an alternative submission: that the evidence was incapable of establishing that he had the mental state necessary to establish the charge of murder and that a verdict of guilty of manslaughter should be substituted.

136 The location of the bullet entry points into the house were said to indicate that the shots were fired at the house itself and not at particular targets inside. And if a fourth shot was fired it must have missed the house completely. They were fired from a significant distance and the evidence indicated they were fired by someone with limited or no competence with a firearm. The presence of persons within the house was known by the gunman, but there were intervening physical structures (walls, windows, doorframes and furnishings). Foresight of the probability that a bullet would strike an occupant, let alone fatally, was said to have been speculative.

137 The applicant has failed to establish that Yazin's evidence was inherently unreliable or that any of his explanations for any shortcomings mandated a doubt about guilt. Having reviewed the evidence at trial in detail, and giving respect to the advantage of the jury which this Court cannot have from a mere review of the transcript, I am not persuaded that the jury should have entertained a doubt that the applicant was the person who fired the gun that resulted in the death of the deceased.

138 I am also not persuaded that the jury should have had a doubt that the applicant had the mental state necessary to establish the charge of murder as opposed to manslaughter. It is well within the realms of a commonsense conclusion that the gunman must have foreseen the probability of death occurring where the gun was discharged multiple times in the direction of a house at night, knowing that there are a number of occupants up and about within that house, at least one of whom was in a front room with the light on, with the focus of the shots being generally in the direction of that room.

139 It cannot be said that the jury ought to have had a reasonable doubt about the applicant's guilt of murder. This ground should be rejected.

140 I would grant leave to appeal against conviction in respect of grounds 1 and 4 but would dismiss the appeal.

Application for leave to appeal against sentence

141 There is a single ground of appeal against sentence which contends that it is manifestly excessive.

142 The written submissions for the applicant provided the following useful summary of the findings made by the learned judge:

"251. Grove AJ concluded that the appellant had discharged the firearm recklessly, having gone to the premises in Fairfield with about 13 other people in a convoy of four cars. He considered that the group went to the wrong house, as there was no evidence to suggest that the men inside the premises had any link to the appellant or others who had travelled there that night.

252. Grove AJ concluded that prior to discharging the firearm the appellant could see people in the front areas of the house. He fired three or four shots, foreseeing that his actions would probably result in the killing of one of the occupants. He considered that the actions of the appellant were objectively very serious and found that the offence fell above the mid-range of seriousness for such an offence.

253. Grove AJ noted the statutory maximum and the standard non-parole period to be 'statutory guideposts'.

254. He then reviewed the subjective case for the appellant and found:

● he was eighteen at the time of the offence,

● he was born in Iran and is of Afghani ethnicity,

● his father was killed in Afghanistan,

● the family (his mother and seven siblings) came to Australia as refugees in 2005.

● The appellant spoke no English when he arrived. By the time he left school in Year 10 he had been before the Children's Court for offences of supply (twice) and assaulting and resisting a female police officer.

● He served three months imprisonment from 10 February 2010 for the offence of malicious damage.

● He had only casual work after leaving school and from the age of sixteen began associating with the Notorious Motorcycle club.

255. Grove AJ noted that the group of persons present on the night of the offence both departed and returned to the motorcycle club's Merrylands meeting house. His Honour noted the psychological evidence that the appellant had struggled to cope in Australia and that the motorcycle club comprised people with similar cultural and language backgrounds.

256. His Honour was unable to reach either a positive or negative conclusion regarding the appellant's prospects of rehabilitation. He accepted the appellant's family were genuine in their desire to assist him. He noted that a denial of responsibility for the offence stood against the prospects of rehabilitation. He considered his custodial record to be not promising.

257. Grove AJ noted there had been periods of segregation, some as a consequence of conduct, others for administrative reasons to separate various gang members. He considered this entitled the appellant to a modest mitigation of sentence. His Honour rejected a submission that there had been a delay in the proceedings of such length as to mitigate sentence.

258. Grove AJ considered the most cogent matter of mitigation to be the appellant's youth. He considered the offence reflected considerable immaturity. Given the inevitably long sentence to be imposed Grove AJ was not persuaded that a finding of special circumstances was warranted.

259. Grove AJ described the appellant as 'the sole perpetrator of a violent and brutal act which he knew would probably have fatal consequences.' He saw no need to accumulate the sentence on the three-month sentence initially served for the malicious damage offence."

143 The written submissions sought to make the following points:

Murder resulting from reckless indifference to human life is not necessarily as culpable, and not necessarily less culpable, than murder arising from an intention to kill or inflict grievous bodily harm: R v Holton [2004] NSWCCA 214 at [120] (Grove J).

The offence was not premeditated and was found to be one of "considerable immaturity". It was committed by an 18-year old offender from an extremely disadvantaged background. This warranted a greater measure of leniency than was extended.

144 The applicant identified two sets of cases for the purpose of comparison. The first were cases involving offenders between the age of 18 and 20, convicted of murder after the introduction of standard non-parole periods: R v Abdulkader and Hohaia [2006] NSWSC 866; R v Nguyen [2007] NSWSC 389; R v Houri [2007] NSWSC 615; R v Zaro [2007] NSWSC 756; R v Harvey [2007] NSWSC 871; R v Shamouil [2009] NSWSC 24; R v Barrett [2009] NSWSC 338; R v Carr [2009] NSWSC 995; R v Dennis [2009] NSWSC 1357; R v Wong [2010] NSWSC 171; R v Cambey and Carney [2010] NSWSC 369; and R v Tatchell and Wildsmith [2010] NSWSC 495. The second were cases where the standard non-parole period did not apply, involving offenders between the age of 18 and 20, where murder was committed with a firearm: R v Gosling [2001] NSWSC 850; R v Chan [2002] NSWSC 544; R v Hamzy [2004] NSWCCA 243; R v P Pham, V Pham and Nguyen [2003] NSWSC 1261; R v Vann [2004] NSWSC 988; and R v EM [2005] NSWSC 212.

145 Senior counsel for the applicant was asked at the hearing about the sentencing judge's finding that the offence was "above the mid-range of seriousness of such offences". It was acknowledge that there was no ground contending that this was wrong; nonetheless it was asserted that such a characterisation was "not accepted".

146 The Crown submissions were confined to an analysis of four of the so-called comparable cases that were relied upon by the applicant in his written submissions. In short, the Crown contended that they did not support the proposition that the sentence is manifestly excessive, that is, unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325-326 [6].

147 The reliance of the applicant upon other cases fails, largely because they are not really comparable apart from the age of the offender. Singling out one subjective feature (age) in order to compare sentences is an unproductive exercise. The range of criminality in the chosen cases, and the bases upon which the offender was culpable for the crime of murder, were widely divergent. There was a significant variation in relevant subjective features as well, including in some of them discounts for the utilitarian value of pleas of guilty. If anything, the cases support the proposition that, while the sentence in the present case was severe, it was not out of the ordinary.

148 As previously noted, the sentencing judge found that the offence was "above the mid-range of seriousness of such offences". While this was "not accepted" by senior counsel for the applicant, it was not the subject of specific challenge by way of a ground of appeal contending error in the exercise of a discretionary judgment. Minds might differ about this assessment but I do not think it is necessary to say more than that this was a serious case of murder. The applicant was armed with a loaded revolver and after finding no satisfaction with whatever he sought at the house in Cathcart Street he chose to discharge it three or four times with a realisation that someone would probably be killed. The judge found that the offender "was the sole perpetrator of a violent and brutal act which he knew would probably have fatal consequences".

149 It was quite appropriate for the judge to take into account all of the applicant's personal circumstances in the way he described. That said, it remained necessary for a sentence to be imposed that reflected important considerations of deterrence, particularly general deterrence, denunciation and recognition of the harm caused. There was no evidence that the applicant was remorseful; he had a prior record; and the judge was unable to make any finding about his rehabilitation prospects. Nonetheless, the judge found in his favour that "the most cogent element of mitigation" was his youth.

150 This sentence is not manifestly excessive. It was harsh for someone as young as the applicant, but appropriately so. I would grant leave to appeal but dismiss the appeal.

Orders

151 I propose the following orders:

1. Leave to appeal against conviction granted, with respect to grounds 1 and 4.

2. Appeal against conviction dismissed.

3. Leave to appeal against sentence granted.

4. Appeal against sentence dismissed.

152 SCHMIDT J: As to the conviction appeal, I agree with Basten JA and R A Hulme J that the applicant must be given leave to appeal his conviction, but that the appeal be dismissed, an independent assessment of the evidence also not having led me to the view that the jury ought to have experienced a doubt as to the applicant's guilt of the offence of which he was convicted.

153 In relation to ground 1a, the trial judge's refusal to give a warning pursuant to s 165 of the Evidence Act 1995 (NSW) and ground 4, that the verdict was unreasonable and not supported by the evidence, I agree with the reasons given by R A Hulme J, as well as the additional observations of Basten JA.

154 I should add that it was the Crown's case that it was the applicant who discharged the firearm, either with at least an intention to inflict grievous bodily harm or with reckless disregard for human life. Contrary to the written submissions advanced on appeal, that it was "never the appellant's case that he was present when the shots were fired, or that he had seen who had discharged the firearm", it was accepted at the hearing of the appeal that Mr Yazin was cross-examined for the applicant as to what he was able to hear and see that night. It was put to him that he had not seen the applicant go into the premises or take out a gun, but it was not put to him that the applicant was not present.

155 As R A Hulme J has explained, Mr Yazin's evidence that it was the applicant who had fired multiple shots at the house where he knew there were occupants, one of whom he had spoken to, was accepted. That evidence was clearly capable of establishing the necessary mental state for this offence.

156 I also agree with the reasons given by R A Hulme J for rejecting ground 1b, that the trial judge had failed to warn the jury of the need to scrutinize the evidence of Mr Yazin with great care and with his Honour's reasons for refusing the applicant leave under Rule 4 to rely on ground 2, that the trial judge erred when explaining the significance of the applicant's counsel not alleging that a person other than the accused had fired the shots at the house.

157 As to the sentence appeal, I also agree with R A Hulme J that while the applicant must be granted leave to appeal the sentence, the appeal must be dismissed, for the reasons which his Honour gave.

158 I note that the sentencing judge's findings were not challenged on appeal and that the applicant relied on the findings that the offence was reckless and of considerable immaturity, committed without premeditation. His Honour nevertheless concluded that the offence fell above the mid-range for such offences. That conclusion reflected the findings that before discharging the firearm recklessly, the applicant could see people in the front areas of the house and that he had foreseen that his actions would probably result in the killing of one of the occupants.

159 The applicant was 18 years at the time of the offence. His Honour also took this into account, as well as other relevant subjective factors. His Honour also had necessary regard to the standard 20 year non-parole period for a mid-range offence of murder, that being one of the statutory guideposts which his Honour was obliged to take into account on sentencing.

160 In written submissions on appeal the applicant placed particular reliance on comparisons sought to be drawn with the sentences imposed in four cases: R v Nguyen [2007] NSWSC 389 (a below mid-range stabbing murder committed during a robbery by a 20 year old, where the sentence imposed after a 25% discount for a plea was 18 years, with a non-parole period of 13 years 6 months); R v Houri [2007] NSWSC 615 (another stabbing murder committed by a 19 year old during a robbery, where the sentence imposed after a 10% discount for a plea was 18 years, with a non-parole period of 13 years, 6 months after a finding that a disability would mean that the offender would suffer hardship in custody); R v Zaro [2007] NSWSC 756 (another stabbing by an 18 year old where the sentence imposed was 22 years, with a non-parole period of 16 years 6 months) and R v Barrett [2009] NSWSC 338 (another stabbing murder by a 20 year old where the sentence was 22 years with a non-parole period of 16 years, after a 12.5% discount).

161 These matters were argued to have involved offending of a more serious kind than occurred in this case, but that sentences which were either less or roughly comparable to that imposed upon the applicant revealed error in his sentencing. The submission was not made out. It rested mainly on the ages of the respective offenders, rather than on any analysis of the nature of their offending.

162 Here the sentence imposed on the applicant was 24 years, with a non-parole period of 18 years and a balance of term of 6 years. The applicant received no discount on this sentence, having not entered any plea. Had there been an early plea, as there was in Nguyen for example, this sentence would have been reduced by 25% to 18 years. On any view the sentence imposed on the applicant is a significant one, but that it was manifestly excessive in the circumstances of this offender, was not established, as R A Hulme J has explained.

163 In the result I agree with the orders which R A Hulme J proposes.

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Amendments

16 October 2014 - After delivery of the judgment the court was notified that one of the persons mentioned was a minor at the relevant time. Pursuant to s 15A of the Children (Criminal Proceedings) Act his name has been amended to "SZ".
Amended paragraphs: 33-37, 39, 46, 53, 55-57, 82

Decision last updated: 16 October 2014