Director of Public Prosecutions v Elliott, Fares & Hamka (Ruling No 1)
[2022] VSC 43
•10 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0051
S ECR 2020 0052
S ECR 2020 0053
| THE DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| JACOB ELLIOTT ALLAN FARES MOUSSA HAMKA | Accused |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 December 2021 |
DATE OF RULING: | 10 February 2022 |
CASE MAY BE CITED AS: | DPP v Elliott, Fares & Hamka (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 43 |
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CRIMINAL LAW – Application by Hamka for separate trial from other accused – Based on possible use of item of evidence admissible in case against co-accused in case against him - Evidence – Statement by co-accused to third person implicating Hamka in offending – Whether admissible against Hamka pursuant to co-conspirators’ rule or on some other basis – Not admissible – Application for separate trial refused – Evidence Act 2008 ss 81, 87, 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Bourke QC with Ms D Karamicov | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused Hamka | Mr D Sala | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
The accused Moussa Hamka (‘the accused’) is charged on an indictment with assisting an offender following a murder. Charged on the same indictment with the murders in question are two other accused named Jacob Elliott (‘Elliott’) and Allan Fares (‘Fares’).
The accused has made an application for a separate trial from Elliott and Fares. The application is principally based upon some evidence concerning a message sent by Elliott to his father in the aftermath of the murder concerning the alleged destruction of a motor vehicle by the accused. In the end, the application turned on the resolution of the question whether the contents of the message would be admissible against Hamka, as opposed to against Elliott himself.
Facts
For present purposes, it is necessary to summarise the facts only briefly.
Elliott’s father, Nabil Maghnie (‘Nabil’), had a troubled relationship with security staff at the Love Machine nightclub in Prahran (‘the Love Machine’ or ‘the nightclub’). At about 1.05am on 14 April 2019, Ali Maghnie (‘Ali’), the son of Nabil and half-brother of Elliott, was thrown out of the Love Machine by security staff. He was apparently aggrieved by this outcome. Shortly afterwards, he spoke with Elliott on the phone. Two hours after Ali’s ejection from the Love Machine, Elliott and Fares attended outside the nightclub in a Porsche motor vehicle driven by Fares, with Elliott the front seat passenger. A number of security staff and patrons were standing outside the nightclub. Using a .32 calibre handgun, Elliott fired four shots into the crowd from close range. He fatally shot a security guard and a patron, and wounded two other men including one security guard. Elliott and Fares then drove away from the scene.
The Porsche was driven to a location where it was set alight and destroyed. Three days later, a silver Suzuki Swift was also set alight and destroyed in South Yarra. Parked nearby was another silver Suzuki Swift which had been stolen before the shootings and was connected with the crimes. On the Crown case, the first Suzuki Swift was destroyed in error, it being wrongly believed by the perpetrators of the arson that it was the vehicle used in connection with the crime.
On an unknown date and in unknown circumstances, Hamka took possession of the firearm used in the shootings. It was found in his bedroom on 29 June 2019.
On 25 June 2019, police released information into the public domain about the mistaken incineration of the incorrect Suzuki vehicle. The media release identified the suspected link between a silver Suzuki and the Love Machine shootings. An optical surveillance device fitted in Nabil’s apartment captured Elliott viewing a television news report concerning the arson of the Suzuki vehicle. A listening device in the apartment captured the following conversation between Elliott and his girlfriend Sara Mohammed (‘Mohammed’):
Elliott: It was the exact same car parked across the street…and they blew up that car and they thought it was the hottie but it wasn’t the hottie then the actual hottie got found…
Mohammed:…forensics on it…
Elliott:You reckon…
Sometime after this, Mohammed observed Elliott using an encrypted communication application, Wickr, to take part in the following communication with Nabil:
Elliott: Moses torched the wrong car…My DNA is in that car.
Nabil: I’ve got to send you overseas.
Evidence would indicate that the accused is known as Moses. The understanding of Mohammed was that the accused was the person referred to in the communication between Elliott and Nabil.
On the prosecution case, following the shootings, a common understanding was reached between Elliott, Fares and the accused that there was a need to deliberately destroy and conceal evidence that could link them to the shootings at the Love Machine.
It is alleged that the accused with two other people incinerated the Suzuki vehicle, in the belief that it was a vehicle associated with the shootings. It is also alleged that he took steps to conceal the murder weapon. It is alleged that he carried out these actions in the knowledge that Elliott and Fares had committed the murders and with the purpose of impeding their apprehension and prosecution.
The statement made by Elliott to Nabil, along with the evidence indicating that the Moses referred to in the communication was the accused, were the things relied upon by Mr Sala for the accused in support of the application for a separate trial.
The law
Section 87 of the Evidence Act 2008 (‘the Act’) relevantly provides:
87 Admissions made with authority
(1)For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that—
(a)when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or
(b)when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or
(c)the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.
(2)For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove—
(a)that the person had authority to make statements on behalf of another person in relation to a matter; or
(b)that the person was an employee of another person or had authority otherwise to act for another person; or
(c) the scope of the person's employment or authority.
Section 81(1) of the Act provides that the hearsay rule does not apply to evidence of an admission.
Section 137 of the Act provides:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
The prosecution submissions
Mr Bourke QC, who appeared with Ms Karamikov for the Crown, in response to a query from the Court made it clear that the prosecution seek to rely on the statement by Elliott in the case against the accused as well as the case against Elliott. Ms Karamikov relied upon two bases for the admission of the evidence against the accused. First, it was submitted that it constitutes a piece of circumstantial evidence demonstrating the existence of a common understanding between Elliott, Fares, the accused and others that evidence would be hidden and destroyed. Secondly, it was submitted that the evidence should be admissible in the case against the accused for its hearsay purpose pursuant to the co-conspirators’ rule. In this regard, Ms Karamikov submitted that the statement in question was made in furtherance of the common understanding which existed between the accused, Elliott, Fares and others, including Nabil. It would then be reasonably open to a jury to consider that the statement was an admission by the accused, able to be used against him. If the statement is viewed as an admission, then the hearsay rule would have no application.
It would be correct to say that in her submissions, Ms Karamikov relied principally upon the latter justification for the admission of the evidence against the accused.
In support of her submissions, Ms Karamikov pointed to s 87 of the Act which is the statutory reflection of the co-conspirators’ rule, and to the decisions of Tripodi v The Queen,[1] Ahern v The Queen,[2] Tsang v DPP (Commonwealth),[3] Beqiri v The Queen,[4] and R v Su.[5]
[1](1961) 104 CLR 1 (‘Tripodi’).
[2](1988) 165 CLR 87 (‘Ahern’).
[3][2011] VSCA 336 (‘Tsang’).
[4][2017] VSCA 112 (‘Beqiri’).
[5][1997] 1 VR 1 (‘Su’).
Ms Karamikov relied on the second and third bases under which evidence of statements made by a co-accused in the absence of the accused may be admissible, as discussed in Tsang at [35]-[39]. She submitted that the evidence would be admissible as original evidence to support the Crown case that the accused entered into an agreement with others to hide and destroy evidence. She further submitted that the co-conspirators’ rule has application.
In respect of Beqiri and Su, Ms Karamikov likened the situation in this case to the situations in those cases. Here, a co-offender was reporting to another person that the object of the common understanding had not been successfully achieved, enabling further steps to be contemplated.
In respect of the situation which would prevail were the Court to rule the statement of Elliott admissible against him alone, and not to be used against the accused, it was made clear by the Crown that they would be willing to ‘sanitise’ the evidence to remove any express reference to the accused. That would protect the position of the accused and not hamper the use of the evidence in the case against Elliott.
As to the defence application under s 137 to which I will turn when summarising the defence submissions, Mr Bourke submitted that provision would have no application because if the use of the evidence against the accused had already been excluded, consideration of s 137 would be a ‘nonsensical exercise’.[6]
[6]Ibid 103.
The defence submissions
Mr Sala sought the exclusion of the evidence entirely in the trial, submitting that whilst it would be technically admissible against Elliott, it would be unnecessary to lead it, in light of the issues between the prosecution and Elliott in his trial. He submitted that the prejudice which would flow to the accused would ‘outweigh’ the legitimate value of the evidence in the case against Elliott.
Mr Sala submitted that neither s 87 of the Act nor the co-conspirators’ rule has application in this case because it is not a case of conspiracy. Furthermore, only the accused is charged with assist offender and he is not alleged to be in a common purpose with the other accused to carry out that crime.
In respect of the particular statement relied upon, Mr Sala made the point that he would not be permitted to cross-examine Elliott about what he meant and to whom he was referring, limiting his ability to challenge the evidence.
Whilst acknowledging that the exclusion of the evidence in its entirety would leave his application for a separate trial ‘significantly crippled’,[7] Mr Sala did not accept that the confinement of the use of the evidence to the case against Elliott would suffice. He submitted that directions to the jury that the evidence could only be used against Elliott would not be likely to be obeyed by a jury. What would be necessary to ensure the fair trial of the accused would be the complete exclusion of the evidence, or alternatively, for the Crown to ‘disavow any allegation that Moses is Mr Hamka’.[8]
[7]Transcript 39.
[8]Ibid.
Mr Sala distinguished the situation in this case from those which applied in the cases relied on by the prosecution. He submitted that in this case, the crime of the accused was completed and the statement of Elliott could not be said to be made in its furtherance.
Mr Sala indicated that in the event that the Court was to rule that the evidence could only be used against Elliott, he would nonetheless seek the exclusion of the evidence pursuant to s 137 of the Act, notwithstanding the fact that the probative value being considered would be that in respect of Elliott whereas the danger of unfair prejudice would concern the accused.
Were the application under s 137 to fail, Mr Sala indicated that he would persist in the application for a separate trial.
Analysis
In Tsang, a decision which concerned, inter alia, the question whether certain telephone calls made by a co-accused and others in the absence of the accused were admissible in the case against the accused in respect of a drug importation and attempted trafficking, the Court stated:
There are three bases under which evidence of statements made by a third person co‑accused in the absence of the accused may be admissible. First, the statements may be circumstantial evidence which, along with other evidence, is relevant to the Crown or defence case.
The admissibility of such evidence does not depend on the existence of a common purpose between the accused and a party to the conversation, provided that it is relevant as part of the surrounding circumstances which tend to prove the accused person’s guilt of the offence. Nor is it necessary for the statements to be made in furtherance of an agreement between the accused and others to commit an offence. Such statements are not admitted as an exception to the hearsay rule (that is, as evidence of the truth of an assertion made), but rather as circumstantial evidence from which an element or elements of the offence can be inferred. As Dixon CJ, Fullagar and Windeyer JJ acknowledged in Tripodi v The Queen:
It is customary at criminal trials to treat the presence or absence of the prisoner as decisive of the admissibility of things said and it is a pity to rob that empirical but practical and convenient test of its usefulness. But often enough in an ordinary case where there is no confederation or preconcert, directions, instructions or the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts.
Secondly, such statements may be admitted as original evidence to support a Crown case that the accused entered into an agreement with others to do the unlawful act with which he or she is charged. Again such evidence is not admissible as an exception to the hearsay rule, but as original evidence. As is the case where no agreement to do an unlawful act is alleged, it is unnecessary to prove that the statements were made in furtherance of the conspiracy.
Thirdly, such statements may be admitted under the co-conspirators’ principle, which permits their admission as evidence of truth of the statements made in the absence of the accused, that is as an exception to the hearsay rule. In conspiracy cases, such evidence may be admitted to prove the accused person’s participation in conspiracy to do an unlawful act.[9]
[9]Tsang [35]-[38].
The Court went on to set out a passage from Ahern in which the principle was explained.
Beqiri was a case concerning the importation and attempted possession of a consignment of methylamphetamine contained within an imported Chevrolet Impala. Charged with Beqiri were accused named Hajko and Rodriguez. One of the grounds of appeal concerned the admission into evidence by the trial judge in the case against the accused of a telephone conversation between Rodriguez and an unknown male in which the latter reassured Rodriguez that the owner of the house from which he had gone to retrieve the drugs from the Impala, namely Beqiri, was aware of what was going on, and that there would be no problem with Rodriguez staying at the house for a couple of days. It was argued by the applicant that the assertions in question were not made in furtherance of the alleged joint criminal enterprise.
The Court held:
In our view, this submission must fail. First, as the Crown submits, the relevant agreement was one which contemplated the intended recovery of the drugs from the car while it was at Beqiri’s house. The safe and undetected removal of the drugs from the car, and in turn from the house, was integral to the attempted possession.
The evidence as a whole supported the reasonable conclusion that both Beqiri and Hajko contemplated that a third person would undertake the role ultimately undertaken by Rodriguez, and the conversation now in issue took place just as Rodriguez performed that role.
The fact that Rodriguez confronted difficulties which he had not anticipated does not change the fact that the conversation occurred as the proposed attempt to take possession of the drugs progressed. A mishap in the course of the performance of the transaction did not change its fundamental character.[10]
[10]Beqiri [97]-[99].
The Court then made reference to Su, in which the Court of Appeal had stated:
It is well established that evidence of the acts and declarations of one conspirator is admissible against another even where that occurred after the principal object of the conspiracy has taken place if those acts and declarations were in furtherance of the common design. An example is R v Merritt where a statement made to police by a conspirator, after the conspiracy had come to an end was ruled admissible against other conspirators if it was made for the purpose of protecting the booty of the crime.
In our opinion it can be no different where the act or declaration is one intended to warn another that the plan has gone awry. Such a warning will bear upon the likely future conduct of the conspirators, be it of the speaker or the recipient. It is axiomatic in the present case that the availability of the drug for distribution, or its seizure by police, would dictate the future actions of the conspirators.[11]
[11][1997] 1 VR 1, 43.
In Lindsey, the applicant was convicted of two charges of arson which arose when the applicant was in prison. He had recruited a friend (‘MB’) to arrange for the destruction of two motor vehicles. Evidence was permitted to be led of telephone conversations between MB and others in the absence of the applicant. It was disputed before the trial judge and on appeal that there was reasonable evidence independent of the conversations of the applicant’s participation in the agreement for the commission of the acts of arson. No issue arose as to whether the conversations were in furtherance of the common purpose.
Insofar as Mr Sala sought the exclusion in its entirety, even in the case against Elliott, of his statement to his father, I do not accept his submissions. There is no question in my mind that what was stated in the encrypted message is entirely appropriate to be left to the jury considering the case against Elliott. It is clearly relevant and there is no reason why it should be excluded.
As to the question whether the evidence is admissible against the accused, I turn first to the principal basis on which the prosecution argues for the admissibility of the evidence which was based on the co-conspirators’ rule.
In the end, with some hesitation, I have concluded that the evidence is not admissible pursuant to that rule because the assertion was not made in furtherance of the common purpose relied on by the prosecution to conceal and destroy evidence. The wrong silver Suzuki had already been destroyed. In the aftermath of that, Elliott saw fit to inform his father, who is not alleged to be involved in either the murder or the offence of assist offender, of the failure of that step. Whilst Nabil offered to send Elliott overseas, there is nothing to indicate that the communication to him by Elliott was carried out with a view to enlisting Nabil’s help in destroying or concealing evidence. Rather, it may be seen as no more than Elliott relating an historical event to his father, and not his taking some step in the course of the ongoing agreement between himself and the accused. In this regard, I believe the statement of Elliott can be viewed differently from the conduct considered in the cases upon which the prosecution relied.
I turn, then, to the subsidiary basis on which reliance was put by the Crown, that is, that the statement of Elliott should be admitted as original evidence to support a prosecution case that the accused entered into an agreement with Elliott and others to destroy and conceal evidence.
It seems to me that the statement made by Elliott adds nothing to the case that the accused entered into any such agreement unless the assumption is made that when Elliott related the information, ‘Moses torched the wrong car’, the person he was referring to was the accused, and he was telling the truth. That would involve using the evidence for a hearsay purpose.
It is my view, then, that the subsidiary basis relied upon by the Crown for the use of the evidence against the accused would not warrant the evidence being used in that way.
Conclusion
The evidence of the statement made by Elliott to his father is admissible in the case against Elliott, but I will not permit it to be used in the case against the accused. It is understood that the Crown will sanitise the evidence in the way discussed so as to remove any mention of the accused’s name.
The application by the accused for a separate trial from Elliott and Fares is refused.
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