By Paul Gregoire and Ugur Nedim
In the early hours of 21 April 2008, a series of altercations between two groups of young men and youths in the vicinity of Granville railway station took place.
One group, described as being of “Islander appearance”, included Edward Spowart and Firoz Mohammed, while the other, said to be of “Sudanese appearance”, included JB, Ringo Madut and EC.
Both groups had been drinking heavily in the hours prior to the altercations, which moved from the station and onto the street, with an initial disagreement involving JB asking Firoz for a cigarette on a platform, which led one of Firoz’s associates to punch JB, while another knocked Ringo down.
Firoz and his two companions then chased JB and EC from the platform. And Firoz later alleged JB produced a knife and threatened his life. However, CCTV footage capturing the initial altercation and chase produced no evidence of any knife.
Not too long after the chase at the station, Firoz and four others, including Spowart, were walking down Granville’s Memorial Drive, close by the local RSL, when they were approached by about 15 to 20 men – including JB, Ringo and EC – armed with bars and sticks.
A brawl ensued, which ended with 15-year-old JB and his companions taking off and this is when Firoz noted Spowart was on the ground across the road, bleeding from several wounds. And it was later alleged that, as a fight broke out between Spowart and JB, the latter fatally stabbed the former.
Sentenced to hard time
JB maintained his innocence during his trial, but, on 10 September 2009, a NSW Supreme Court jury found him guilty of murdering Spowart, contrary to section 18 of the Crimes Act 1900 (NSW). The maximum penalty applying to this offence is life imprisonment.
And the accused was further charged with the attempted murder of Firoz Mohammed, contrary to section 27 of the Crimes Act. However, the jury acquitted JB of this charge, which carries up to 25 years imprisonment.
A standard non-parole period (SNPP) applies to both these crimes. An SNPP is a guidepost parole period for a “middle of the range of seriousness” offence, when only objective factors of a crime are considered, which is to be used by judges as a reference point when sentencing.
Murder carries a 20 year SNPP, while attempting to kill someone carries a 10 year SNPP.
During the trial, a key piece of evidence was provided by a witness referred to as A107, who acted as a support for JB whilst he was at the police station, due to his young age. And A107 went on to claim that JB had admitted his guilt at this time.
And on 15 May 2010, since-retired Supreme Court Justice Megan Latham sentenced JB to 23 years in prison, with non-parole set at 16 years.
Multiple appeal attempts
JB unsuccessfully appealed against his conviction to the NSW Court of Criminal Appeal (NSWCCA) in 2012, and the following year saw him further fail in seeking special leave to appeal to the High Court of Australia.
However, the case went before the NSWCCA again in March 2015, following an application under section 78 of the Crimes (Appeal and Review) Act 2001 (NSW), which called for an inquiry into the conviction, in light of new evidence that had become available.
This new evidence involved key witness A107 having been a police informant, and that the police officers, who appointed him to provide 15-year-old JB support at the police station, were well aware of this. Indeed, officers had deliberately done this with the aim of obtaining a confession.
And the police officers who did testify at trial failed to mention that he was a registered informant, and nor was any hint made to the fact that he’d been convicted on two counts of obtaining money via false or misleading statements in the past.
So, in March 2015, the NSWCCA quashed JB’s conviction and released him on bail, after having served 6 years and 8 months inside.
But, as the NSW police commissioner hadn’t produced all documentation regarding A107, the court couldn’t decide on whether to acquit JB or send him for retrial.
And on 16 September 2015, JB appeared once again before the NSWCCA to determine the answer to the outstanding question.
Whether to stand trial again
During the 2015 hearings, the NSWCCA heard that JB’s companion EC had testified that Ringo had disposed of the knife on the night. And it further heard that, on being told he’d be charged with murder, Ringo changed his initial statement and claimed JB had confessed to the killing.
Then Chief Judge at Common Law Clifton Hoeben outlined that the question to be considered was whether a new trial should be ordered, and in doing so, the appeals court should deliberate on whether there was insufficient evidence to warrant conviction or retrial, rather than acquittal.
“In relation to those matters, it needs to be kept in mind that the charge of murder is the most serious crime known to the law,” his Honour stated. “The court must give appropriate weight to the public interest in the due prosecution and conviction of persons accused of murder.”
However, the chief judge found that without the evidence of A107, the prosecution’s case against JB was limited, and a retrial would depend to a greater extent on the evidence of Ringo, as well as whether it was open to the jury to find that JB had been in possession of a knife on the night.
In deliberating upon the evidence as to whether JB was in possession of a knife at the train station, Judge Hoeben outlined that the CCTV footage failed to show this, and the evidence from Firoz and another member of his gang was inconsistent and had changed over time.
Testimony from a Granville RSL security guard involved JB and EC approaching him around the time of the brawl and requesting his help, as “these men want to hurt us”, which clearly didn’t align with the assertion that JB was brandishing a knife and ready to kill.
His Honour also outlined that due to the holes in Firoz’s evidence, the court would not be able to establish that JB produced a knife on the evening of the incident, while EC’s evidence that Ringo disposed of the knife, rather gave rise to the suspicion that he was the one involved in the killing.
The last piece of evidence scrutinised was that JB was the only person seen fighting with the deceased. And his Honour found that the accounts provided on how JB had been acting in the brawl with Spowart revealed that the teen had been punching with both fists and not wielding a knife.
Acquitted of murder
In concluding his findings, Chief Judge Hoeben outlined that without the evidence of A107, the prosecution’s case could not succeed, and the “fresh and new evidence” submitted to the court by JB was hardly going to support the case against him.
For these reasons, on 29 April 2016, his Honour ordered that the appeal against conviction be allowed, that the conviction for the murder of Edward Spowart be quashed and a verdict of acquittal be entered in relation to JB.
Then Justice Michael Adams agreed with his colleague’s orders, which placed the ruling in the majority of the three-justice bench, while then Justice Lucy McCallum dissented, as she considered that despite the weakness of the prosecution case, the court had a duty to consider it in whole.
