Director of Public Prosecutions v El Nasher
[2023] VSC 372
•24 May 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0218; S ECR 2021 0219
| Director of Public Prosecutions | Crown |
| v | |
| Abdullah El Nasher | First Accused |
| - and - | |
| Osamma Allouche | Second Accused |
---
JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 24 May 2023 |
DATE OF REASONS: | 6 July 2023 |
CASE MAY BE CITED AS: | DPP v El Nasher & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 372 |
---
EVIDENCE — Post offence conduct — Whether admissible as incriminating conduct — El Nasher (D1) shot two people (V1 & V2) — D1 charged with murder of V1, attempted murder of V2 and, in the alternative, causing serious injury intentionally to V2 — Allouche (D2) charged with same offences based on s 323(1)(c) of the Crimes Act 1958 — Whether D1 discharged his firearm in lawful self‑defence — Whether D1’s post offence conduct (flight from crime scene, change of clothes and car, attempted concealment of face from CCTV cameras on returning to his apartment building, further changes of clothing on the night of the shooting and flight interstate) reasonably capable of being viewed by jury as evidence of incriminating conduct — D1’s post offence conduct reasonably capable of being viewed as an implied admission to having discharged his firearm unlawfully, that is, not in lawful self‑defence — Jury Directions Act 2015, ss 18, 19, 20 & 21.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Thomas with Ms A Haban-Beer | Office of Public Prosecutions |
| For the First Accused | Mr D Sheales with Ms S Seoud | Stephen Andrianakis and Associates |
| For the Second Accused | Mr J Desmond with Ms M Brown | Emma Turnbull Lawyers |
HIS HONOUR:
BACKGROUND
On 24 May 2023, I ruled that the prosecution in the trial of Abdullah El Nasher (‘the accused’) could use certain post offence conduct as incriminating conduct, that is, as an implied admission that he had discharged his firearm unlawfully (i.e., not in self‑defence). I said I would provide written reasons for my ruling in due course and I do so now.
The accused[1] and co‑accused, Osamma Allouche,[2] were tried for the murder of Benjamin Togiai and the attempted murder of Omar Bchinnati[3] outside the Melbourne Pavilion in Kensington on 1 March 2019. There was no dispute that the accused shot both men[4] whilst they were out the front of the venue which was staging a number of boxing matches that night. The accused’s main defence was that he discharged his firearm in self‑defence.
[1]The accused was ultimately convicted of murder and intentionally causing serious injury.
[2]The co-accused denied that he was a party to any agreement with the accused to commit any offences and was ultimately acquitted on all charges.
[3]Alternatively, causing serious injury intentionally to Omar Bchinnati.
[4]For example, see Transcript, 23 May 2023, p 1287.
On 17 February 2022, the prosecution filed the relevant Notice of Incriminating Conduct dated 22 December 2021.
On 2 May 2023, the jury was empanelled. During the course of the trial, the prosecution adduced CCTV footage of the accused leaving the scene of the shooting in a Mercedes (the same car he had arrived in) and of him returning to his apartment later that night in a Camry, wearing different clothing. The CCTV footage at his apartment building showed him trying to conceal his face from the CCTV cameras by pulling up his top and coming and going from his apartment in different clothing. Evidence was also adduced that the accused was arrested in N.S.W. on 9 March 2019.
On 22 May 2023, the accused gave evidence. During the course of his evidence, the accused testified that he fired several shots after two men drew their guns and pointed them at him. In his testimony, the accused admitted that, after the shootings, he left the scene in the Mercedes in which he had come to the venue, attended his mother’s home, changed his clothes, disposed of the gun and clothes he had been wearing at the time of the shooting[5] and then returned to his own apartment in a Camry. He admitted that he had asked an associate to get him another car and that is how he came to have the Camry, which belonged to his co‑accused’s mother. When asked in examination in chief why he had changed his clothing, he said “Just panic” and that, at that time, he knew about gunshot residue.[6] It was not put to him in cross examination that he engaged in the post offence conduct because he knew or believed he was guilty of the alleged offences or of any element of those offences.
[5]There was no application by the prosecution under s 19(3) of the Jury Directions Act 2015 (JDA) to include the disposal of the gun and the clothes he had been wearing at the venue in the alleged incriminating conduct.
[6]Transcript, 22 May 2023, p 1164.
On 23 May 2023, in the absence of the jury, there were discussions between myself and counsel pursuant to Part 3 of the Jury Directions Act 2015 (‘JDA’). In the course of those discussions, the prosecution submitted that certain post offence conduct by the accused amounted to incriminating conduct, namely, the accused’s flight from the crime scene, change of clothes and car, the attempted concealment of his face from CCTV cameras on returning to his apartment building, further changes of clothing at the apartment and his flight interstate.[7] The prosecution sought to rely on this conduct as incriminating conduct in relation to the principal offences and alternatives.[8]
[7]Transcript, 23 May 2023, p 1284.
[8]Transcript, 23 May 2023, p 1285. The “alternatives” were manslaughter, causing serious injury intentionally (Charge 3 on the indictment) and causing injury intentionally.
On 24 May 2023, I gave the following ruling:
In relation to El Nasher, the prosecution may only use his post‑offence conduct as incriminating conduct to prove that he discharged his firearm unlawfully; that is, not in lawful self‑defence.[9]
[9]Transcript, 24 May 2023, p 1333.
On 30 May 2023, I gave the jury directions regarding the incriminating conduct in accordance with my ruling.[10] No exceptions were taken to those directions.
[10]On 30 May 2023, I gave the jury the following directions regarding the post offence conduct relied on by the prosecution as against El Nasher (Transcript, pp 1650 to 1654):
Statutory framework
Relevant sections of the JDA include the following:
18Definitions
In this Division—
conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
incriminating conduct means conduct that amounts to an implied admission by the accused—
(a)of having committed an offence charged or an element of an offence charged; or
(b)which negates a defence to an offence charged;
offence charged includes any alternative offence.
19Prosecution notice of evidence to be relied on as evidence of incriminating conduct
(1)The prosecution must give notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct by serving on the accused and filing in court at least 28 days before the day on which the trial of the accused is listed to commence—
(a)a notice of intention to rely on evidence of incriminating conduct, in the form required by rules of court, if any; and
(b)a copy of the evidence on which the prosecution intends to rely.
(2)A notice under subsection (1) must be served in accordance with Part 8.3 of Chapter 8 of the Criminal Procedure Act 2009.
(3)The trial judge may dispense with the requirements of subsection (1)(a) or (b) if—
(a)during a trial the prosecution first becomes aware of evidence of conduct that it proposes to rely on as evidence of incriminating conduct; and
(b)the prosecution gives oral notice to the court and the accused of its intention to rely on evidence of incriminating conduct; and
(c)it is in the interests of justice to dispense with those requirements.
(4)If under subsection (3) the trial judge dispenses with the requirement of subsection (1)(b), the prosecution must identify orally to the court and the accused the evidence of conduct that it proposes to rely on as evidence of incriminating conduct.
Note
See section 8 for extension or abridgment of time.
20Evidence of incriminating conduct
(1)The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
(a)the prosecution has given notice in accordance with section 19; and
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
Note
A trial judge may make a determination under paragraph (b) even where the evidence of conduct relates only to an alternative offence.
(2)Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.
21Mandatory direction on use of evidence of incriminating conduct
(1)If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that—
(a)the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that—
(i)the conduct occurred; and
(ii)the only reasonable explanation of the conduct is that the accused held that belief; and
(b)even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
(2)In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.
Note
Section 6 provides that a trial judge need not use any particular form of words in giving a direction to the jury. For example, in relation to the direction referred to in subsection (1)(a)(ii), if the evidence concerns an element of an offence, the trial judge could refer to “knew” rather than “believed” to better describe what the incriminating conduct, if accepted, may prove.
SUBMISSIONS
The accused did not object to the post offence conduct being used as incriminating conduct in relation to the element of causation[11] — which was not in dispute anyway[12] — but objected to it being used as incriminating conduct in relation to “state of mind”[13], that is, as to whether the accused had the requisite mens rea and/or discharged his firearm in lawful self‑defence.[14] The accused submitted that a jury could not exclude as a reasonable possibility that he engaged in the post offence conduct simply because he had committed offences by “being in possession of the firearm and discharging it.”[15] The accused also said that in circumstances where the prosecution did not challenge the accused in cross examination about his reasons for his post offence conduct, it should not be allowed to rely on it as incriminating conduct.[16]
[11]Transcript, 23 May 2023, p 1292.
[12]Transcript, 23 May 2023, p 1287.
[13]Transcript, 23 May 2023, p 1288.
[14]Transcript, 23 May 2023, p 1288–1293.
[15]Transcript, 23 May 2023, p 1286.
[16]Transcript, 23 May 2023, p 1297–1298.
The prosecution submitted that the accused’s post offence conduct taken as a whole was inconsistent with an innocent explanation and that it bespoke murderous intent[17] and negated lawful self‑defence.[18] The prosecution highlighted the fact that his attempts to conceal his face from the CCTV cameras at his apartment block had nothing to do with gunshot residue.[19]
[17]Transcript, 23 May 2023, p 1313.
[18]Transcript, 23 May 2023, p 1314.
[19]Transcript, 23 May 2023, p 1310.
ANALYSIS
On the basis of the evidence as a whole, it was open to the jury to take the view that the only reasonable explanation for the post shooting conduct was that the accused knew or believed he had discharged his firearm unlawfully, that is, not in self‑defence. The evidence included footage (Dash Cam and CCTV) of the accused running up the street towards the entrance of the Melbourne Pavilion and firing five shots in quick succession at people on the pavement outside the venue. The first two shots are audible only but the next three shots are visible and audible on the Dash Cam footage. After firing the second group of shots, the CCTV footage captures the accused moving forward again, up onto the footpath. It was the prosecution’s case that he went up onto the footpath intending to fire more shots but his gun misfired at that time. An unfired .25 cartridge was found in the gutter. In that context, it was open to the jury to infer that the conduct of the accused immediately after firing five shots, namely, advancing up onto the footpath was inconsistent with him acting in self‑defence. It was conduct that smacked of aggression, not fear. This is the context in which the post shooting conduct must be considered. The post shooting conduct which was relied upon by the prosecution as incriminating conduct was multi‑faceted and prolonged. It included trying to conceal his face from CCTV cameras at his apartment block and his flight to N.S.W. Considered as a whole, it bespoke more than “just panic”. It struck me as proportionate to someone who believes they have discharged a firearm unlawfully (that is, not in self-defence) but disproportionate to someone who is merely concerned about having been in illegal possession of a firearm in a public place or having used a firearm in a public place to defend themselves from others pointing firearms at him.
The fact that the prosecution did not put to the accused in cross examination that he had engaged in the post shooting conduct because he knew or believed he had discharged the firearm unlawfully (i.e., not in self-defence) did not seem to me to be of significance in relation to the admissibility of the post shooting conduct. First, the JDA does not make such ‘puttage’ a precondition for the admissibility of post offence conduct as incriminating conduct. Secondly, and more importantly, the prosecutor certainly made it clear to the accused in her cross examination of him that she rejected his version of events, in particular, his claim that he only discharged his firearm because two men drew their guns and pointed them at him.
---
The next topic is alleged incriminating conduct by El Nasher … after the shootings. In this trial the prosecution argued that you can use evidence of certain conduct by … [the] accused after the shooting as evidence that … [the] accused held certain incriminating beliefs. It is convenient to refer to the conduct as post‑shooting conduct.
In relation to El Nasher, the prosecution relies on evidence that he fled the scene after the shootings, changed his clothes and changed his car, tried to cover up his face from the CCTV cameras when he returned to his Bay Street premises, changed his clothes again at Bay Street and, ultimately, fled to New South Wales. The prosecution argued that this post‑shooting conduct by El Nasher was evidence that he knew or believed that he had discharged his firearm unlawfully; that is, not in self‑defence. In other words, the prosecution allege that by this post‑shooting conduct, El Nasher made implied admissions to having discharged his firearm unlawfully.
…
I give you the following direction in relation to this alleged post‑shooting conduct against … El Nasher …: you may only use the evidence of the post‑shooting conduct in the way I have described if you find that this conduct occurred and that the only reasonable explanation for the conduct is that the accused … had the relevant belief alleged by the prosecution …
However, I must warn you that even if you find that [the] accused held the alleged belief, you must consider all the evidence when deciding whether the prosecution has proved [the] accused’s guilt beyond reasonable doubt.
For the avoidance of doubt, ladies and gentlemen, I direct you that you may not use the post‑shooting conduct of … El Nasher … as evidence of an implied admission in respect of the intent required in respect of any alleged offence. In other words, you may not use El Nasher’s post‑shooting conduct as evidence that when he fired his shots he intended to bring about any particular result, whether that be death, really serious injury, serious injury or just injury.
…
I must also warn you that there are all sorts of reasons why a person might behave in a way that makes them look guilty. This means that … you have to consider that … [the] accused may have engaged in the post‑shooting conduct alleged even though he is not guilty of the offences alleged against him.
For example, El Nasher … may have engaged in [the] post‑shooting conduct because [he was] in fear and panicked; [he] thought [he] might be in trouble for having a loaded firearm with … [him] in a public place; … [he] thought [he] might be wrongly charged over the shootings because, on [his] own admission, … [he] had discharged shots.
In summary, even if you think that the relevant post‑shooting conduct makes [the accused] look guilty, that does not necessarily mean that … [he] is guilty. And I repeat, you may only use the post‑offence conduct for the limited purposes described earlier, if (a) you are satisfied that it occurred — that is, the post-shooting conduct; and (b) that the only reasonable explanation for it is the incriminating one referred to earlier.
0
0
0