Citation: R v Jamal [2013] NSWDC 20
Court: NSW District Court
Date: 8 March 2013
Judge: Judge Norrish QC
Background
The accused was charged with firing a firearm in or near a public place, namely Gillies Street, Lakemba, on 1 November 1998. The charge arose from a shooting at and around Lakemba Police Station in the early hours of that morning, an incident the court described as a violent crime that struck at civil order and put lives at risk.
The Crown's case did not allege that the accused was one of the shooters. Rather, the prosecution alleged he participated in a joint criminal enterprise by assisting with preparations, monitoring a police scanner, waiting nearby during the shooting, and helping the principal offenders escape. The accused was said to be an associate of a criminal group known as "DK's Boys," led by Danny Karam until his murder in December 1998.
The Crown's case rested principally on the testimony of three civilian witnesses who were themselves members or associates of the group, as well as a criminal associate who claimed the accused had later made admissions about the shooting. All civilian witnesses gave evidence under pseudonyms. The accused pleaded not guilty and elected to be tried by judge alone.
Legal Issues
- Whether the evidence of indemnified witnesses who were themselves criminally involved was sufficiently reliable to establish the accused's participation in the joint criminal enterprise beyond reasonable doubt.
- Whether the accused was present at planning discussions, and present before and after the shooting to assist the principal offenders.
- Whether alleged post-event admissions made to a criminal associate were truthful and capable of supporting the Crown case.
- Whether the Crown had discharged its burden of proof to the requisite standard in the absence of independent corroborating evidence placing the accused with the shooters.
Decision
Judge Norrish QC conducted a careful assessment of the four civilian witnesses whose evidence underpinned the prosecution. The principal witnesses, Rossini and Laycock, were members of DK's Boys. A third, Green, was a group member but played no part in the Lakemba events. A fourth witness, Kennedy, claimed the accused had later admitted involvement. The court noted that all of these witnesses had significant credibility issues arising from their criminal backgrounds, self-interest in giving evidence, and their status as indemnified witnesses.
The court accepted that the accused was an associate of DK's Boys and was aware of some of its criminal activities. His involvement in dealing with stolen vehicles and, from early 1999, the supply of marijuana was acknowledged. However, the court found the evidence fell well short of establishing that he held a senior role in the group, or that he was present at planning meetings or at the scene of the shooting. Notably, no witness placed the accused in Danny Karam's company prior to Karam's murder, and the accused did not hold the group insignia, such as the DK rings or tattoos, associated with core membership.
On the central factual questions, the court identified material inconsistencies between the accounts of Rossini, Laycock, and Green. These inconsistencies went to the core issues of whether the accused was present at planning discussions and whether he assisted before and after the shooting. The court observed that, while some inconsistencies could be attributed to the passage of time, others reflected a pattern of untruthfulness or inaccuracy among witnesses who had demonstrated a willingness to be loose with the truth about their own and others' criminal conduct.
The alleged admission to Kennedy presented additional difficulties. Even accepting that words to that effect were spoken, the court found it could not be satisfied the admission was truthful rather than boasting or "grandstanding" by the accused. In the absence of independent evidence placing the accused with the shooters in circumstances demonstrating relevant knowledge and intention, the court was not satisfied beyond reasonable doubt that the prosecution had established guilt.
Orders Made
• Verdict of "not guilty" returned on the count upon which the accused was arraigned
Key Takeaways
- The District Court acquitted the accused, finding the Crown had not established beyond reasonable doubt that he participated in the joint criminal enterprise to shoot at Lakemba Police Station.
- Where the prosecution case rests principally on the evidence of indemnified witnesses who are themselves criminally involved, the court must apply careful scrutiny to their reliability, credibility, and the consistency of their accounts on the central factual issues.
- Material inconsistencies between the accounts of multiple witnesses on the core facts, particularly regarding the accused's alleged presence at planning meetings and at the scene, were sufficient to prevent the court reaching the required standard of proof.
- An alleged post-event admission is not automatically capable of establishing guilt. A court must be satisfied the admission was truthful and not mere boasting, especially where it was made by a person in a criminal milieu and relayed by a criminal associate with potential self-interest.
- A finding that an accused was a peripheral associate of a criminal group does not, without more, establish participation in a specific criminal enterprise carried out by that group.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132–133 (judge alone trials)
- Evidence Act 1995 (NSW)
Cases:
- Fleming v The Queen (1998) 197 CLR 250