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Court of Criminal Appeal 9 August 2023

Sinai v R

[2023] NSWCCA 194

Homicide

Citation: Sinai v R [2023] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 9 August 2023
Judge(s): Beech-Jones CJ at CL (with Walton J and Price J agreeing)

Background

On 23 January 2018, a man named Ho Ledinh was shot and killed at close range while seated outside the Happy Cup café in Bankstown. The shooter, Arthur Keleklio, pleaded guilty to the murder approximately one month before the trial of the appellant, Abraham Sinai. The Crown alleged that Sinai was a party to a joint criminal enterprise with Keleklio to murder the deceased.

The Crown's case against Sinai was entirely circumstantial. The central allegations were that Sinai had assisted in planning the murder, met with Keleklio shortly before the shooting to provide relevant items and information, and arranged the means of escape. Sinai was alleged to have been present inside a Nissan Elgrand van, driven by his wife and carrying his sister as a passenger, which conducted surveillance of the café before the shooting and picked up Keleklio after it.

The jury found Sinai guilty on 28 June 2021. He was sentenced to 30 years' imprisonment with a non-parole period of 22 years and 6 months. Sinai sought leave to appeal on the sole ground that the verdict was unreasonable and could not be supported by the evidence.

  • Whether the jury's verdict of guilty for murder was unreasonable or could not be supported having regard to the evidence, applying the test in M v The Queen (1994) 181 CLR 487.
  • Whether, on the circumstantial evidence as a whole, it was reasonably open to the jury to be satisfied beyond reasonable doubt that Sinai was a party to a joint criminal enterprise to murder the deceased.

Decision

Beech-Jones CJ at CL (with Walton J and Price J agreeing) granted leave to appeal but dismissed the appeal. The Chief Judge held that the evidence overwhelmingly supported the jury's verdict and that there was no significant possibility an innocent person had been convicted.

The CCTV evidence showed that, in the hour before the shooting, the van drove through central Bankstown, including past the café where the deceased was sitting. The van parked multiple times near a St Vincent de Paul shop on East Terrace. Immediately after the shooting, Keleklio ran directly to that exact location. The precision of Keleklio's escape route, leading away from his own parked car and directly to the van's position, was held to be deliberate and to demonstrate a pre-arranged meeting point.

The timing of a phone call made from a mobile associated with Sinai to his wife, in the moments before Keleklio arrived at the van, was described as compelling. Cell tower data placed the phone in central Bankstown at the time. The wife, who had entered the nearby St Vincent de Paul shop with the sister, swiftly returned to the van immediately after the call, just before Keleklio arrived. The court found this sequence of events, combined with the van's earlier surveillance activity, was consistent only with Sinai being present in the van and directing the operation.

A particular piece of evidence was an intercepted telephone call from 3 August 2018, in which Sinai told a relative, in the context of a discussion about CCTV footage, that "that's why I sticked to the van." The court treated this as a clear admission that Sinai had remained concealed in the van on the day of the shooting to avoid capture on camera. Taken together with the other evidence, the inference that Sinai was a party to the joint criminal enterprise was held to be overwhelming.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a verdict can stand on purely circumstantial evidence where the inference of guilt is, on the evidence as a whole, overwhelming and no significant possibility of innocence remains, applying M v The Queen (1994) 181 CLR 487.
  • A pre-arranged escape route, established through CCTV and cell tower evidence, can form a compelling plank of circumstantial proof in a joint criminal enterprise case where the route leads precisely to the accused's known associates.
  • The court found that an intercepted statement by the accused, referring to remaining concealed in a vehicle to avoid CCTV detection, constituted a clear admission of presence at the scene of a murder, capable of supporting a conviction.
  • Participation in a joint criminal enterprise to murder does not require direct evidence of the accused committing the killing itself; the circumstantial evidence of planning, surveillance, communication, and facilitation of escape can be sufficient to ground a guilty verdict.
  • No error in the trial judge's directions or conduct of the trial was raised, so the appeal turned entirely on the reasonableness of the verdict rather than any procedural or evidentiary ruling at first instance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (murder)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (applied)
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 (considered)
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (considered)
- Peacock v The King (1911) 13 CLR 619; [1911] HCA 66
- Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44
- R v Keleklio; R v Sinai [2022] NSWSC 62
- R v Sinai (No 4) [2021] NSWSC 779