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District Court 12 July 2023

R v Moosawi

[2023] NSWDC 319

Firearms & weapons
CRIME PRINCIPAL JUDGMENT FIREARMS OFFENCES JUDGE ALONE TRIAL CIRCUMSTANTIAL CROWN CASE

Citation: R v Moosawi [2023] NSWDC 319
Court: District Court of New South Wales
Date: 12 July 2023
Judge: Coleman SC DCJ

Background

The accused was charged with firing a firearm in a manner likely to endanger the safety of himself, other persons, or property, contrary to s 93G(1) of the Crimes Act 1900 (NSW). The Crown alleged that on the night of 27 September 2021, the accused fired shots from within a residential property at Merrylands (the Lahood Premises) toward a white Mazda CX-5 parked on the street outside.

The shooting came to light not through any complaint to police, but through intelligence and telephone intercepts obtained under a Telecommunications Service Warrant. Police later attended the premises, observed impact damage consistent with projectiles, and obtained a search warrant. Crime scene examination confirmed that firearms had been discharged at the site.

The Crown's case was entirely circumstantial. No witnesses who were present gave evidence, and the Crown relied principally on inferences drawn from the evidence as a whole, including telephone intercepts in which the accused allegedly made admissions. The accused elected a judge-alone trial under s 133 of the Criminal Procedure Act 1986 (NSW) and did not give evidence.

  • Whether the Crown proved beyond reasonable doubt that the accused was the person who fired a firearm from inside the Lahood Premises
  • Whether statements recorded in telephone intercepts constituted admissions by the accused that he had fired a weapon
  • Whether the Crown's circumstantial case excluded all reasonable hypotheses consistent with innocence, as required by R v Baden-Clay (2016) 258 CLR 308

Decision

Coleman SC DCJ applied the standard directions for a judge-alone criminal trial, reminding himself that the Crown bore the onus of proof on every element of the charge and that no adverse inference could be drawn from the accused's silence. In a circumstantial case, an inference of guilt can only be drawn if it is the single rational inference available on the proven facts.

The central question was whether the telephone intercept material established that the accused had admitted to being the shooter. His Honour found the so-called admissions were ambiguous. The accused had made statements such as "I shot back," but the court could not exclude the reasonable possibility that this reflected bravado or that the accused was using "I" loosely to refer to associates rather than himself.

Separately, the Crown failed to exclude beyond reasonable doubt two competing hypotheses: first, that another person at the premises (referred to as "Jabba," who lived there) was the actual shooter; and second, that the accused may have been outside the cream metal fence boundary when the shots were fired from within the property. Neither the other persons present nor Anthony Lahood had ever directly attributed the shooting to the accused in any of the intercepted communications.

Taken together, these reasonable possibilities were fatal to the Crown's case. The court could not be satisfied beyond reasonable doubt that the accused was the person who fired the weapon, and returned a verdict of not guilty.

Orders Made

  • Verdict of not guilty entered on the charge of firing a firearm in a manner likely to endanger the safety of himself or other persons or property
  • Related backup charges of possessing an unauthorised firearm and acquiring a firearm subject to a prohibition order were withdrawn
  • Any application for costs by the accused to be filed with submissions by 16 August 2023; Crown submissions in reply due by 15 September 2023

Key Takeaways

  • In a circumstantial Crown case, a verdict of guilty cannot be returned unless the inference of guilt is the only rational inference available on the proven facts. The existence of reasonable alternative hypotheses will defeat the prosecution.
  • Ambiguous statements recorded in telephone intercepts do not necessarily constitute admissions. The District Court found that the accused's words could not be excluded as bravado or as a collective reference to associates rather than a personal admission.
  • Where multiple persons were present at a scene and the Crown cannot exclude beyond reasonable doubt that one of them (rather than the accused) was the perpetrator, the identification element of the charge remains unproven.
  • No adverse inference arose from the accused's decision not to give evidence. The court applied the orthodox direction that silence cannot fill gaps in the Crown's proof or strengthen the circumstantial case.
  • Under s 133 of the Criminal Procedure Act 1986 (NSW), a judge conducting a judge-alone trial is required to articulate applicable principles of law in the verdict, consistent with the High Court's direction in Fleming v The Queen (1998) 197 CLR 250.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93G(1)
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), ss 165, 191

Cases
- Fleming v The Queen (1998) 197 CLR 250
- R v Baden-Clay (2016) 258 CLR 308