COURT FILE NO.: CR-17-100003160000
DATE: 20180206
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Martin Sabat, for the Crown
Crown/Applicant
- and -
KAMAL HASSAN
Paul Calarco, for Mr Hassan
Accused/Respondent
JUDGMENT
D.L. Corbett J.:
[1] Kamal Hassan was discharged on two charges of first degree murder and was committed for trial on two counts of second degree murder at a preliminary hearing before Nakatsuru J. of the Ontario Court of Justice.[^1]
[2] The Crown applies to this court for an order in the nature of certiorari with mandamus in aid to quash the order of Nakatsuru J. and to remit the matter back to the Ontario Court of Justice for committal on two charges of first degree murder.
[3] For the reasons that follow the application is granted.
Legal Principles
(a) Standard of Review in this Court
[4] Certiorari is limited to “jurisdictional review or surveillance” by a superior court of statutory tribunals. It does not include review of mere errors of law, but it does arise where the tribunal acts outside its statutory jurisdiction or has breaches the principles of natural justice.[^2]
(b) Test for Committal for Trial at a Preliminary Hearing
[5] A preliminary hearing judge must commit an accused for trial where there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty: put another way, where there is admissible evidence which could, if believed, result in a conviction, the judge is required to commit the accused for trial.[^3]
[6] The test for committal applies whether the evidence against the accused is direct or circumstantial. Where the evidence is circumstantial, the preliminary hearing judge is required to engage in a limited weighing of the evidence to determine whether it is reasonably capable of supporting the inferences the Crown will ask the jury to draw.
This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.[^4]
The inference need not be particularly strong. Difficult inferences can be reasonable and logical and are matters for trial, not for the preliminary hearing judge.[^5] Where there are competing inferences, the preliminary hearing judge is not to weigh them but rather is to accept the inference that favours the Crown. The question for the preliminary hearing judge is not whether there is a rational explanation for the evidence other than the guilt of the accused, but whether there is evidence which, if believed, could reasonably support an inference of guilt.[^6]
[7] A preliminary hearing judge acts outside her jurisdiction if she fails to follow these principles and instead engages in impermissible weighing of evidence or selecting between competing available inferences.
The Case for the Crown
[8] The case concerns a double murder in a high-rise apartment at 36 Lisgar Street, Toronto in the early morning hours of June 28, 2015. Two people are alleged to have committed these murders: Kamal Hassan (the accused/respondent) and Mr Skene-Peters (who was subsequently killed in a shoot-out with police). There were two victims: Mr Dirie, who was shot in the kitchen of the apartment, and Mr Abdullahi, who was shot while sleeping in his bed in the apartment.
[9] Mr Skene-Peters was a shooter involved in the murders.
[10] It was conceded by the defence at the preliminary hearing that there was sufficient evidence to commit Mr Hassan for two counts of second degree murder. These were reasonable concessions, as is seen in my review of the evidence below.
[11] The Crown alleges that the murders were planned and deliberate.[^7] A murder is “planned” when the killing is a result of a scheme conceived and carefully thought out before it was carried out. The plan does not have to be complicated and does not need to have taken a long time to formulate.[^8]
[12] A murder is “deliberate” when the killing is a result of a considered act of the accused, taking time to weigh the advantages and disadvantages, and is not just a spontaneous or impulsive act.[^9] A “deliberate” murder does not have to be the result of reasonable or normal thinking or rationally motivated so long as it was considered and not the result of sudden impulse.[^10]
[13] The evidence need not be overwhelming to require committal: even if the evidence of planning and deliberation is not overwhelming and will require “very close scrutiny from the trier of fact”, the accused should be committed for trial on first degree murder.[^11] “It is the capacity of the evidence to support the inference of planned and deliberate murder not the likelihood or certainty of doing so that is crucial.”[^12]
[14] The manner in which a killing is carried out may be a basis on which the trier of fact can infer planning and deliberation. I agree with the reasoning of West J. in R. v. Mac (and the quotation on which he relies from Watt J. in R. v. E.B.:
In my view, one of the strongest pieces of evidence from which a reasonable inference of planning and deliberation can be drawn is the manner in which the intentional killing… was carried out. As stated by Watt J. in R. v. E.B….
It would not seem open to controversy that the manner in which an intentional killing is carried out, in other words, the circumstances surrounding a killing, may bespeak the existence of an antecedent plan and a deliberate execution of it.
The evidence that the victims were shot in the head, at point blank range, effectively “executed”, could support a reasonable inference that the murders were planned and deliberate. R. v. MacNeil, [2007] QJ No. 16132 (SC) at paras. 17-18. In my view, the placing of a firearm to the temple of three separate individuals and then shooting each, at different times, at point blank range, is a planned and deliberate act and not an impulsive one.[^13]
[15] Waiting for and/or creating an opportunity to arise to effect a plan can be evidence supporting an inference of planning and deliberation.[^14]
[16] A great deal of inculpatory post-offence conduct is not probative of the degree of an accused’s culpability for homicide: running away, destroying evidence, or threatening witnesses may be equally consistent with first and second degree murder and manslaughter, for example, and would not provide a basis to infer first rather than second or second rather than manslaughter. This is well-worn ground. However, it is not the case that there is an iron-clad rule against using post-offence conduct as part of the circumstances from which to infer planning and deliberation. It depends on the circumstances of the case and the post-offence conduct in question: the issue is whether, in all the circumstances of the case, the post-offence conduct supports inferences of planning and/or deliberation.[^15]
[17] The Crown points to the following evidence from which the trier of fact could draw the inference that the murders were planned and deliberate:
(a) The method of killing appears to be execution-style. Mr Dirie was shot at close range in quick succession. Then shortly after there was a second burst of rapid gunfire. This supports the conclusion that Mr Dirie, awake, was executed by the two gunmen in the kitchen, and then one of the gunmen immediately went into the bedroom and shot Mr Abdullahi as he slept;
(b) Two other men and three women were at the apartment immediately before the shootings. The men had apparently just left the apartment and were in the corridor outside at the time of the shootings. The women were still in the apartment, but had gone out on the balcony to smoke. Mr Hassan closed the balcony door immediately before the shootings took place. Thus, although there had apparently been five other people in the apartment shortly beforehand, the shooting took place just as those five people were out of sight – the men outside the apartment and the women on the balcony. All this could suggest that the shooters waited until they were alone in the kitchen with Mr Dirie in order to shoot him, rather than the shooting arising from some spontaneous event.
(c) From the blood-spatter evidence and the entrance and exit wounds of the bullets, Mr Dirie was seated in the kitchen when he was shot in the side of his neck by one gunman, apparently while looking in the other direction. He stood up and was shot in the neck by the other gunman on the other side of his neck. He slumped to the floor, where he was shot a third time in the head. These three shots came in quick succession, based on the evidence of witnesses who heard the shots. This supports an inference that both gunmen were ready to shoot Dirie at the time that the first shot was fired, that the gunmen were on either side of Dirie, and that their shooting was coordinated. All this, the Crown says, supports an allegation that the gunmen acted in concert, which is evidence of planning and deliberation.
(d) The killing of Mr Abdullahi is evidence that execution was the plan. If the shooting arose as a result of a spur of the moment argument with Mr Dirie, there would have been no point in going into the bedroom to kill Mr Abdullahi;[^16]
(e) Mr Skene-Peters and Mr Hassan were childhood friends;
(f) Mr Skene-Peters and Mr Hassan arrived separately at the apartment in the very early morning hours. Each was carrying a loaded gun. Each pulled it out and used it to kill, Mr Skene-Peters killing Mr Dirie, and Mr Hassan killing both Mr Dirie and Mr Abdullahi;[^17]
(g) Mr Skene-Peters and Mr Hassan left the scene together in a car later identified as belonging to Mr Hassan’s mother. Mr Skene-Peters was seen later that day driving this car.
(h) Shortly after the murders, Mr Skene Peters and Mr Hassan were videotaped in the elevator of another building, together, apparently celebrating the killings. It appears that they were re-enacting the killings. Mr Hassan seems elated. The two men appear to be celebrating together.
[18] With respect, this is an arguable circumstantial case for first degree murder against Mr Hassan. If the inferences most favourable to the Crown are accepted in respect to all the evidence, and if all the evidence is considered together, I would describe the case against Mr Hassan for first degree murder as strong.
[19] There is some evidence which, if accepted, could give rise to a reasonable doubt.
(a) There is some evidence that Mr Hassan arrived at the apartment with others. Why would he bring witnesses with him if he was planning to kill?
(b) There is some evidence there was an argument involving Mr Dirie immediately before the shots began.
(c) Mr Skene-Peters had a history of violence; possibly he brought two guns with him (though it is hard to see how the forensic evidence can be squared with a “one shooter” theory of the case).
[20] The Crown’s theory of motive is that Mr Dirie was killed to steal a gold chain he was wearing. Support for this theory is found in videotape evidence showing a gold chain around Mr Dirie’s neck before the shooting. The chain was not around his neck when police arrived at the scene. A gold chain that looks like the chain that had been around Mr Dirie’s neck is seen around the neck of Mr Skene-Peters after the shooting, in the video footage showing Messrs Hassan and Skene-Peters celebrating in an elevator. This theory of motive is consistent with both a planned and deliberate murder, or with a spontaneous argument arising at the apartment. While it is possible, it would not seem to explain the killing of Mr Abdullahi. And while life is obviously much cheaper for some than others, it doesn’t seem a particularly strong account of motive for two murders planned before Messrs Hassan and Skene-Peters got to the apartment. However, it is not necessary for the Crown to prove motive, and taking the gold chain may just have been an upshot of the crime rather than its raison d’etre: perhaps a trophy rather than a motive. Certainly the trier of fact could conclude that the primary motive is not known but that, having killed Mr Dirie for whatever reason, Mr Skene-Peters took the gold chain.
The Decision of the Preliminary Inquiry Judge
[21] The experienced preliminary inquiry judge correctly stated the applicable law; on this both sides agree. The issue is whether he followed the law that he stated.
[22] With respect, I conclude that the preliminary inquiry judge fell into error by assessing each piece of evidence in isolation from the rest of the evidence in the case and by selecting between competing inferences. The Crown does not have to prove each piece of evidence beyond a reasonable doubt. And a conclusion that might be nothing more than speculation on its own may be an available inference in a particular context.
[23] If it is accepted that there is evidence for committal on second degree murder (as was conceded by the defence), then it is conceded at the outset that there is a case on which a jury could convict Mr Hassan of second degree murder. The forensic evidence seems to establish that two shooters killed Mr Dirie, standing on either side of him and firing at him in rapid succession. The rapidity of the firing is corroborated by the evidence of the witnesses who heard the shots.
[24] The preliminary hearing judge made the following findings:
(1) Mr Hassan and Mr Skene-Peters did not arrive at the condo together. There is no evidence that the two were in contact before the party, either personally or through some telecommunications device. There is no evidence to suggest they ever planned to meet at the party. Mr Skene-Peters had been at the party much earlier in the day without Mr Hassan.
I do not agree with this analysis. Mr Hassan and Mr Skene-Peters, friends since childhood, both end up at the same condo with loaded guns, and then use those guns to kill two people. The absence of evidence that they had communicated immediately beforehand is nothing more than an absence: it does not establish that they did not communicate beforehand. This absence of evidence does not derogate from inferences of planning and deliberation that can be drawn from the evidence that is available to the Crown.
(2) The preliminary hearing judge found that he “must take into account the exculpatory inferences available in that Mr Hassan had brought three women and perhaps two men to the party.” These actions are “inconsistent with any plan to murder people at the unit made prior to Mr Hassan arriving.”
I agree that there is an exculpatory inference available if the jury finds that Mr Hassan “brought” witnesses with him to the party. This could afford the jury with some evidence tending to give rise to a reasonable doubt that the murders were planned and deliberate.
I have two difficulties with the use made of this point by the preliminary hearing judge. First, it is not at all clear that it is fair to say that Mr Hassan “brought” the witnesses. There is evidence that he came with the three women, specifically that he shared a cab with them (evidence that would then leave the trier of fact in some puzzlement as to how Mr Hassan’s mother’s car got to the condo building for Mr Hassan to use to drive away from the scene of the murders). There is evidence that Mr Hassan entered the building and went up to the condo immediately after the three women did so. The three women testified that they did not know Mr Hassan but provided no ready explanation as to why they were sharing a cab with him to the party at the condo. There is a fundamental dissonance that lies at the heart of this evidence, a dissonance that the jury will have to confront on a full record at trial. On the evidence at the preliminary hearing, taken as a whole, a trier of fact could conclude that the three women were simply wrong in identifying Mr Hassan as an occupant of the cab. Or it may be that one of them knows Mr Hassan and that she brought him to the party, rather than the other way around, as a means of getting him into the condo. Or the jury could conclude that the plan was to wait until an opportunity arose, in the knowledge that Mr Hassan and Mr Skene-Peters were going to a party and there would be other people there. This reasoning is not to enter into the realm of speculation, but rather to weigh the strength of the inference to be drawn from the suggested fact that Mr Hassan arrived with witnesses: the jury would weigh the strength of the inference in the context of all of the evidence. Indeed, the jury could be satisfied of guilt beyond a reasonable doubt and have no unified reason as to why this alleged fact – bringing witnesses – did not give rise to reasonable doubt for them.
(3) The preliminary hearing judge found that there is no evidence that Mr Hassan (or Mr Skene-Peters) had a prior animus against the deceased. There is some evidence that Mr Skene-Peters knew one or both of the deceased from his having been at the condo at the party earlier that day. There is no evidence that Mr Hassan knew either deceased beforehand.
I do not agree that these observations undermine an inference of planning and deliberation. First, again, the absence of evidence does not establish anything: one or both of the victims may have been well known to either or both of Mr Hassan and Mr Skene-Peters. The jury could not speculate that they were, of course, but neither could they conclude that they were not. These points relate to motive. The Crown does not have to prove motive. The Crown theorizes that the motive was theft of the gold chain. Given that Mr Skene-Peters was at the party earlier, it is possible that he decided to return to steal the chain and enlisted the help of his friend Mr Hassan. The jury could find first degree murder, on the strength of the Crown’s case, and then conclude that either the murder was motivated by theft, as argued by the Crown, or the motivation is not known.
(4) The preliminary hearing judge found that Mr Hassan and Mr Skene-Peters were both present in the condo for an extended time before the killings. They did not arrive, immediately commit the murders, and then leave.
I agree that the evidence supports the preliminary hearing judge’s finding that Mr Hassan and Mr Skene-Peters were both present at the condo for an extended time before the killings. I also agree that, if that had not been the case, and if they had arrived and immediately murdered the victims, that evidence would have supported an inference of planning and deliberation. Balanced against this is the evidence that the killings took place when other witnesses were no longer immediately present, a rather remarkable coincidence if it is not evidence of a plan to kill. I agree with the preliminary hearing judge that the extended stays at the party of Messrs Hassan and Skene-Peters could support an inference that the killing arose suddenly as a result of a dispute, rather than having been planned. But that is not the inevitable or only conclusion that can be drawn from these circumstances.
(5) The preliminary hearing judge found that there is evidence of “shots being inflicted quickly and from short range” that there was nonetheless “a lack of evidence” to support a conclusion that these were “execution-style shootings”.
If by a “lack of evidence” the preliminary hearing judge meant “no evidence” or “very little evidence” then I conclude that he erred. Mr Abdullahi was shot three times, at close range, as he lay asleep in his bed. From the entrance and exit wounds it can be inferred that the shooter was standing over him. “Execution-style shooting” is not a term of legal art. The gist of the Crown’s submission is that, in the encounter leading to the killing, the intent was to kill and to be sure of killing. There is no need for the gun to be placed to the side of the head for the killing to be “execution-style”. In respect to the killing of Mr Dirie, the positioning of two shooters to either side of the victim, with the shots being fired in short succession, implies that either both guns were drawn before the shooting started, or both shooters knew in advance that shooting was about to break out. The kitchen in which the shooting took place was too small for the shootings to be anything other than “point blank”, given the positioning of the shooters on either side of Mr Dirie. I agree with the preliminary hearing judge that it could be arguable that an argument broke out which escalated to violence, and the shooters would necessarily have been very close to their victim. It is a question for the jury as to which it was.
(6) The preliminary hearing judge found that the overall circumstances of the killing were not persuasive evidence of planning and deliberation. He held, for example:
If the Crown’s submissions are taken at face value, then any time a person is shot multiple times in a vulnerable are of the body by more than one shooter would mean, without more, a committal for first degree murder.
This proposition overstates the Crown’s argument. But that aside, I would have thought that in most cases of deliberate murder, being shot virtually simultaneously in the head and neck by two shooters would mean committal for first degree murder in the absence of clear circumstances to the contrary. It is very strong circumstantial evidence of coordination that bespeaks planning and deliberation. Not always and not inevitably, but it is a powerful basis on which the inferences can be available. Further, there are other circumstances here, on which the Crown relies, including the apparent execution of Mr Abdullahi moments later, the prior connections between Mr Skene-Peters and Mr Hassan, and their post-offence conduct (including leaving together).
(7) The preliminary hearing judge found that there is no evidence that Mr Abdullahi was robbed. There is no evidence of animus against him or motive to kill him.
I agree with these observations. But it should not be forgotten that Mr Abdullahi was killed, shot in his bed while he slept. It is likely that whoever shot him had some reason to do so, though that reason is not disclosed in the evidence. Again, the absence of evidence of motive does not assist the Crown, but neither does it undercut the Crown’s case.
(8) The preliminary hearing judge found that the balcony door could have been closed by Mr Hassan “for all sorts of reasons and it would be speculative… to find this ambiguous action in the context of what was taking place in general at the time, to be some evidence capable of being supportive of a plan to kill and Mr Hassan’s participation in it.”
I appreciate that the line between inference and speculation can be hard to draw, a point the preliminary hearing judge noted in his reasons. The line has to be drawn on the basis of the totality of the circumstances: do those circumstances provide a factual foundation for the inference the Crown asks be drawn? If the jury concludes that Messrs Hassan and Skene-Peters, friends since childhood, came separately to the condo with loaded firearms, and that they were finally alone with Mr Dirie in the kitchen whereupon they shot him dead, the jury could accept that Mr Hassan closed the patio door to create an impediment to any of the women on the balcony walking in on the murder as it was taking place. By itself, closing the door establishes little, certainly not enough for an inference of planning and deliberation. But it is a small piece of the puzzle, available to the Crown.
(9) The preliminary hearing judge concluded that the post-offence conduct does not reasonably support planning and deliberation.
With respect, the fact that the two men left together is some evidence of common purpose. The fact that both men appear to be happy, and exhilarated, and minded to re-enact the shooting in celebratory style, could be evidence of expectations fulfilled or surpassed. The evidence the men left together seems to me to be obviously available to the jury on the issue of planning and deliberation: it is evidence of working in concert. The rest of the post-offence conduct would have to be treated with care, bearing in mind the question of whether it is equally supportive of second degree murder. One would hope not: one would hope that if the killings had arisen as a result of a sudden violent dispute, that the perpetrators would be shocked and perhaps scared. But not necessarily: that would depend on the character of the killers
(10) The preliminary hearing judge found that the taking of the gold chain does not support an inference of planning and deliberation.
For the reasons given above, I am inclined to agree with the preliminary hearing judge on this point. I do not find this a persuasive motive. However, is it any evidence of motive? I think that clearly it is. I find it unpersuasive, but the jury may conclude otherwise. The facts are that Mr Skene-Peters was present at the condo earlier and likely saw Mr Dirie with his gold chain. Mr Skene-Peters returned, shot Mr Dirie, and took his gold chain. There is no other evidence of motive. I consider that this is some evidence from which the jury could infer motive. If instead of a gold chain of modest worth, it was a Rolex watch worth $250,000, the inference of motive might seem easier to draw. But to discount this theory entirely, one would have to assume that Mr Skene-Peters placed a certain value on human life. This assessment is a matter for the jury.
[25] Trials are sometimes described as jigsaw puzzles, where each piece of evidence is a piece of the puzzle. No jury is ever given all of the pieces. The question for the jury is whether, based on the evidence they accept, they see enough of the picture to be satisfied by the Crown’s account of it beyond a reasonable doubt. The learned preliminary hearing judge focused on the gaps, the missing pieces, and, with respect, failed to appraise what can be seen. The circumstances of the killings strongly support an inference that the two shooters acted in concert, with some level of coordination. The murder of Mr Abdullahi in his bed seems to belie a theory that the killings were the result of a sudden disagreement with Mr Dirie. The post-offence conduct provides confirmation of the two shooters working in concert and then celebrating a job well done. As I said at the outset, this seems a strong case for first degree murder; certainly it is a triable one.
Conclusion and Order
[26] The application is granted. An order shall issue in the nature of certiorari with mandamus in aid quashing the order of the preliminary hearing judge dated April 12, 2017 and remitting the case back to the Ontario Court of Justice to commit Mr Hassan on two charges of first degree murder.
D.L. Corbett J.
Released: February 6, 2018
COURT FILE NO.: CR-17-100003160000
DATE: 20180206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Crown/Applicant
- and -
Kamal Hassan
Accused/Respondent
JUDGMENT
D.L. Corbett J.
Released: February 6, 2018
[^1]: Now of the Ontario Superior Court of Justice. [^2]: R. v. Russell, 2001 SCC 53, [2001] 2 SCR 804, paras. 19, 26, 48; Ewaschuk, Criminal Pleadings and Practice in Canada, chapter 26. [^3]: Criminal Code of Canada, s.548(1)(a), United States v. Sheppard, 1976 CanLII 8 (SCC), [1977] 2 SCR 1067 [^4]: R. v. Arcuri, 2001 SCC 54, [2001] 2 SCR 828, para. 23; see also paras. 29-30. [^5]: R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 OR (3d) 321, 153 CCC (3d) 433 (Ont. CA). [^6]: R. v. Sazant, 2004 SCC 77, [2004] 3 SCR 635, paras. 18 and 23; R. v. Magno (2006), 2006 CanLII 21758 (ON CA), 210 CCC (3d) 500, paras. 15-21 (Ont. CA), leave to appeal refused: SCCA No. 407; R. v. Arcuri, 2001 SCC 54, [2001] 2 SCR 828, para. 23. [^7]: Criminal Code of Canada, s.231(2). [^8]: R. v. Weese, 2010 ONSC 3589, [2010] OJ No. 2651 (QL), per McCombs J., R. v. Brissett, 2004 ONCJ 378 (Ont. C.J.), para. 11. [^9]: R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 SCR 1074, para. 18. [^10]: R. v. Asfaha, 2012 ONSC 387, para. 25, per McWatt J.; R. v. Mac, 2009 ONCJ 771, per West J. See also R. v. Kirkby 1985 CanLII 3646 (ON CA), [1985] OJ No. 166 (CA), per Martin JA; R. v. Turningrobe, 2007 ABCA 236. [^11]: R. v. Bigras, 2004 CanLII 21267, paras. 19-20. [^12]: R. v. Bottineau, 2007 CanLII 13358 (Ont. SCJ), per Watt J. (as he then was), paras. 23 and 76. [^13]: R. v. Mac, 2009 ONCJ 771, paras. 132-133, quoting R. v. E.B., [2006] OJ No. 1864 (Sup. Ct.), para. 476. See also R. v. MacPherson, 2014 ONCA 223, para. 29. [^14]: R. v. Mathison, 2004 CanLII 9614 (Ont. CA). [^15]: R. v. Saleh, 2015 ONCA 23, [2015] OJ No. 237 (Ont. CA), para. 221. See also R. v. White, 2011 SCC 13, [2011] SCJ No. 13, paras. 36-38, 42; R. v. MacKinnon, 1999 CanLII 1723 (ON CA), [1999] OJ No. 346 (Ont. CA), paras. 14-15; R. v. Fatima, 2006 CanLII 63701 (ON SC), [2006] OJ No. 3633 (Ont. SCJ), para. 100, 115; R. v. Bottineau, 2007 CanLII 13358 (Ont. SCJ), per Watt J. (as he then was), para. 29; R. v. Asfaha 2012 ONSC 387, per McWatt J., para. 30; R. v. Chambers, 2016 ONCA 684, [2016] OJ No. 4802 (Ont. CA), paras, 87-89. [^16]: It would make no sense to kill him to silence witnesses to the killing, since there were women on the balcony who were awake and had seen the events leading up to the killings, and no attempt was made to kill them. They would have been more potent witnesses than the sleeping Mr Abdullahi. [^17]: The gun found on Mr Skene-Peters at the time he was killed by police was identified forensically as one of the guns that was used to kill Mr Dirie. The other gun was not recovered. The second, unrecovered gun, was used both to kill Mr Dirie and Mr Abdullahi. An inference available from this evidence is that Skene Peters used the gun that was found on him, and thus was the shooter of only Dirie, and that Hassan used the other gun and thus was the shooter of both Dirie and Abdullahi.```