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Supreme Court 20 July 2020

R v McCloskey (No 3)

[2020] NSWSC 914

Homicide
CRIME MURDER TRIAL BY JUDGE ALONE WHERE ACCUSED FOUND NOT GUILTY

Citation: R v McCloskey (No 3) [2020] NSWSC 914
Court: Supreme Court of New South Wales
Date: 20 July 2020
Judge: Davies J

Background

The accused, a former member of the Rebels Outlaw Motorcycle Club, was charged with the murder of John Salafia, who was shot five times through a wire screen door at his home in Kings Point on the night of 23 June 2013. The deceased was at home with his two young daughters when at least three, and probably four, people arrived in a Subaru station wagon. The accused admitted to having driven the group to and from the deceased's property but denied being the shooter.

The accused entered a plea of not guilty to murder at trial, though his counsel indicated a willingness to plead guilty to being an accessory after the fact to murder. The Crown did not accept that plea in discharge of the indictment, and the matter proceeded to a judge-alone trial. The accused had been originally charged on a joint indictment with another man, Sami Hamalainen, but the Court of Criminal Appeal had earlier ordered that the two trials be conducted separately.

The Crown's case rested principally on admissions the accused allegedly made to a Crown witness, referred to as CD, including admissions obtained after CD wore a listening device. The accused denied the admissions were true, claiming he had made them to appease and ward off CD, whom he said had intimidated him.

  • Whether the Crown proved beyond reasonable doubt that the accused was the person who shot and killed the deceased, rather than merely the driver of the vehicle.
  • Whether admissions made by the accused to Crown witness CD were truthful, and whether doubt was raised as to their reliability.
  • Whether the Crown established all elements of murder (voluntary act, causation, and intention to kill or cause grievous bodily harm) to the requisite standard.
  • Whether tendency evidence about another person (referred to as QR) was properly admitted and what weight it carried.
  • Whether the accused's fabrication of claims about involvement in other murders, and his alleged motive for making false admissions, was sufficient to undermine the Crown's case.

Decision

Davies J identified that the Crown's case turned almost entirely on whether CD's account of the accused's admissions was accepted, and whether those admissions were truthful. The accused offered an explanation for having made the admissions: he said he was intimidated by CD and fabricated the account to satisfy him. The accused had also, separately, fabricated claims about involvement in other murders, which the Crown pointed to as showing a pattern of false bravado but which also illustrated that the accused was capable of making untrue admissions of serious criminal conduct.

The court accepted that several circumstances were consistent with the accused having been the driver rather than the shooter. The deceased knew the accused as a Rebels member, which would have undermined any plan to approach the house disguised as rival Comancheros. The accused was also the only person familiar with the local area, lending some credibility to the claim that his role was to drive the group and enable a quick escape.

Davies J found that the matters identified raised a reasonable possibility that the admissions to CD were false, and therefore a reasonable possibility that the accused was not the person who shot the deceased. The Crown had itself acknowledged that unless the admissions were both made and true, it could not establish guilt of murder. On that basis, the accused was found not guilty of murder.

However, the court found the accused guilty of being an accessory after the fact to the murder of John Salafia, consistent with the plea he had offered at the outset of trial.

Orders Made

  • The accused was found not guilty of the murder of John Salafia.
  • The accused was found guilty of being an accessory after the fact to the murder of John Salafia.

Key Takeaways

  • In a judge-alone trial, the court is required by section 133 of the Criminal Procedure Act 1986 (NSW) to set out the legal principles applied and the findings of fact relied upon, and to take into account any warnings that would have been required if a jury were present.
  • Where a Crown case depends principally on admissions made to a witness, acquittal follows if the court is not satisfied beyond reasonable doubt that those admissions were both made and true; the Crown itself conceded this threshold applied in this case.
  • A defendant's capacity to fabricate serious criminal admissions, demonstrated by evidence of false claims about involvement in other offences, can contribute to reasonable doubt about the truthfulness of other admissions relied upon by the Crown.
  • Tendency evidence about a third party was admitted and considered, but it did not, in combination with other circumstances, overcome the doubt raised about the reliability of the admissions attributed to the accused.
  • An accused who pleads guilty to a lesser charge (accessory after the fact) but contests the principal charge (murder) may ultimately be convicted of the lesser offence where the Crown declines to accept that plea in discharge of the indictment and fails to prove the greater charge to the requisite standard.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 23
- Criminal Appeal Act 1912 (NSW) s 5F
- Criminal Procedure Act 1986 (NSW) s 133
- Evidence Act 1995 (NSW) ss 38, 97, 101, 165, 191

Cases:
- Hamalainen v R [2019] NSWCCA 276
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v McCloskey (No 2) [2020] NSWSC 786