Director of Public Prosecutions v Elliott, Fares & Hamka (Ruling No 2)
[2022] VSC 171
•7 April 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 |
DATES OF HEARING: | 5 & 6 April 2022 |
DATE OF JUDGMENT: | 7 April 2022 |
CASE MAY BE CITED AS: | DPP v Elliott, Fares & Hamka (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 171 |
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CRIMINAL LAW – Murder – Whether reckless murder should be left - Not pleaded by prosecution in Summary of Prosecution Opening or specifically canvassed in opening address – In absence of jury immediately after opening address, prosecutor raised prospect of seeking to have reckless murder left – Whether defence properly on notice as to that prospect – Whether necessary and appropriate for reckless murder to be left – Reckless murder to be left for the consideration of the jury.
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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 Elliott | Ms J Condon QC with Ms S Stafford | Doogue & George Criminal Lawyers |
| For the Accused Fares | Mr C Thomson with Mr C Terry | Galbally & O’Bryan |
| For the Accused Hamka | Mr D Cronin | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
At the conclusion of the prosecution case and in the absence of the jury, I enquired of counsel for the accused Jacob Elliott (‘Elliott’), Ms Condon QC, as to the course her client proposed to follow, in accordance with ss 226 and 227 of the Criminal Procedure Act 2009 (‘the Act’). In response, Ms Condon raised for the first time a legal matter upon which she submitted a ruling would be required by the Court before she should be required to state her client’s course. The legal matter was the question whether or not reckless murder should be left for the consideration of the jury. Mr Thomson for the accused Allan Fares (‘Fares’) indicated that he would make a like submission.
Background
Elliott and Fares face eight charges contained on an indictment filed against them and a third man, Moussa Hamka (‘Hamka’).[1] Elliott and Fares are charged with two charges of murder, three charges of attempted murder, and three alternative charges to the attempted murder charges of intentionally causing serious injury. Hamka faces two charges of assisting an offender following a murder.
[1]Indictment C1912748.3 filed on 17 March 2022.
The charges faced by Elliott and Hamka arise from a shooting carried out by Elliott outside the Love Machine nightclub (‘LM’) in Prahran early on 14 April 2019. Four shots from a semi-automatic pistol were fired from a moving vehicle at close range at a group of people standing outside the entrance to the nightclub. One security guard and a patron standing next to him were shot in the head and died. Another security guard was shot in the shoulder. Two other patrons were shot in the arm, the one bullet passing through the forearm of one of the patrons and entering the arm of the second.
It is not in dispute that Elliott is the person who fired the shots from the front passenger seat of a stolen dark coloured Porsche Cayenne. It is not in dispute that Fares was the driver of the vehicle.
The shootings occurred about two hours after the brother of Elliott, Ali Maghnie (‘Ali’), was expelled from LM and dealt with by security staff. To place that event in context, the prosecution case asserts that there was bad blood between the family of Ali, including his father Nabil, and the man who was in charge of some aspects of security at LM, Joey Hosri. Shortly after being thrown out of LM, Ali telephoned his father and made clear his anger and distress about being dealt with by the security staff at LM. As I have already indicated, within hours, Elliott and Fares attended in the vicinity of LM. The vehicle was driven five times past LM. It was as it drove past on the fifth occasion that Elliott fired the shots from the handgun in rapid succession over about a second or so.
On the prosecution case, the shots were fired in payback for the treatment meted out to Ali by security staff at LM. On the prosecution case as it was opened to the jury by Mr Bourke QC, there was an agreement, arrangement or understanding between Elliott and Fares to fire shots into the crowd of people milling around outside LM with the intention of killing people. That accorded with the way the Crown case was foreshadowed in the Amended Summary of Prosecution Opening (‘the Prosecution Summary’) filed on 5 March 2021, and some particulars provided by the Crown in response to requests from the legal representatives of Elliott and Fares.
In his opening address, Mr Bourke explained to the jury that an intention either to kill or to cause really serious injury would suffice where murder is concerned. He went on to indicate that it was not necessarily the Crown case that the accused had a specific person or persons as the target standing outside the nightclub. He said:
You don’t need that for murder, all you need is the intent and the act and the result. The prosecution case doesn’t have to be any more than Elliott and Fares fired multiple shots into a group of people and, at that time, they had one or other of those two intentions to kill or cause really serious injury. Now, there are other constructs of murder that I won’t go to at the present time.[2] So intent to kill or cause really serious injury is what the prosecution seeks to prove.[3]
[2]Emphasis added.
[3]Transcript 93.
Immediately upon the jury leaving the Court at the conclusion of Mr Bourke’s address, I asked him what he meant by the italicised portion above. He responded that this was a reference to reckless murder. The following exchange then occurred:
Trial judge: That’s what I was wondering. So, the reckless murder, I don’t think was specifically touched on in the summary of prosecution opening, or in your address. Do you anticipate that it may be left or that you may seek to have it left?
Mr Bourke: Well, I anticipate that it may be, but no more than that.[4]
[4]Ibid 128.
Neither Ms Condon nor Mr Thomson sought to raise any concern or make any response to the indication given by Mr Bourke to the Court that the Crown may seek to have reckless murder left to the jury. Each then proceeded in turn to respond to the prosecution opening as delivered to the jury.
A preliminary question
Mr Bourke submitted that I should not rule on the matter raised by Ms Condon until all of the evidence is in. Only then could an informed decision upon the question whether reckless murder should be left be made. Furthermore, Mr Bourke submitted that the actual decision by the Crown whether it would seek to have reckless murder left should not be expected to be made until all of the evidence is in. Notwithstanding this, Mr Bourke did indicate that on the current state of the evidence, the prosecution would seek to have reckless murder left.
Ms Condon on the other hand submitted that the important forensic decision to be made by the accused as to the course he would follow in the trial should only be required to be made when the defence have a full awareness of exactly how the case would be permitted to be put against him.
In the circumstances, whilst not necessarily deciding that this was a matter which should properly be decided at this juncture, I was prepared to hear submissions, and to rule on the matter.
Submissions for the accused Elliott
Ms Condon, in her detailed written and oral submissions, summarised the law concerning reckless murder and emphasised the propositions, which I unreservedly accept, that it is not appropriate for reckless murder to be left in every case, and that great circumspection should be shown before it is left. Ms Condon noted numerous occasions on which appellate courts have cautioned about the dangers of the prosecution relying upon reckless murder when an alternative charge of manslaughter by unlawful and dangerous act is open. She submitted that such dangers would be present were reckless murder to be left in this case.
Ms Condon submitted that the leaving of reckless murder on charges 1 and 2 would not ‘accord with the prosecution case presented on the remaining charges’.[5] As she put it:
The Crown could not reasonably suggest that the shot or shots that killed Mr Osmani and Mr Arow were accompanied by a reckless state of mind, but the remaining shots were discharged with either an intention to kill or intention to cause really serious injury.
For the Crown to proceed in this way would be to disregard common sense and practical reality (Deane J, King v The Queen (1986) 161 CLR 423) and would result in an incoherent case being left to the jury.[6]
[5]Outline [9].
[6]Ibid [10]-[11].
In her written outline of submissions, Ms Condon asserted that complicity is central to the Crown case against Elliot and Fares and then pointed to the response provided by the prosecution to a request for further particulars which outlined the agreement relied upon against Elliott. She submitted that the agreement relied upon by the Crown was one relating to intentional murder, and it was never indicated that the agreement could incorporate reckless murder.
In her oral submissions before me, however, Ms Condon accepted that the way in which the case would be put against Elliott would not rely on the law of complicity, as he was, as conceded by Ms Condon in the trial, the person who fired the shots.
Ms Condon submitted that the ‘opaque’ reference made by Mr Bourke in his opening address to ‘other constructs of murder’, and then the airing of that matter in open court in the absence of the jury, did not amount to sufficient notice having been given of the prospect of the Crown seeking to rely on reckless murder. The prospect of reckless murder being relied upon was not canvassed in the Prosecution Summary, and what Mr Bourke said about it in the absence of the jury did not amount to his committing the Crown to the alternative way of putting the case. As she put it, the matter was left in abeyance. What occurred was not sufficient to constitute sufficient notice and a compliance with the rules of procedural fairness.
Ms Condon submitted that the accused had met the case as pleaded, and that it would be grossly unfair, at the end of the Crown case, for the prosecution to be allowed to put its case in the alternative. It would amount to an impermissible enlarging of the Crown case in breach of the principle in King v The Queen.[7]
[7](1986) 161 CLR 423.
Ms Condon submitted that if reckless murder was left, there would be a serious danger of the jury conflating the test for reckless murder, which is subjective, with the objective test applicable for manslaughter by unlawful and dangerous act. In that respect, Ms Condon referred to a number of authorities.
She went on to submit that the introduction of reckless murder would add an ‘unnecessary and virtually incoherent layer of complexity’.[8]
[8]Transcript 1024.
When asked how the prosecution case would have been met differently had the defence known from the start that the Crown would seek to have reckless murder left, as opposed to thinking that was merely a possibility, Ms Condon indicated that would always be a difficult question to answer because forensic decisions are made in a reactive manner. She did not advance any submission about any way in which she would have conducted the defence case differently. Nor did she point to any prejudice to the defence case occasioned by the way in which things had unfolded.
In submissions she made after the submissions of Mr Thomson but before those of the prosecutor, Ms Condon suggested that I was looking at the question from the wrong angle, submitted that it was not my role as trial judge to be patching up the prosecution case for them, and asserted that I had made a number of comments which might make it seem I was ‘delving into the realm a little too much’. She helpfully reminded me that:
neutrality is central to judicial office as your Honour well knows so we wouldn’t want there to be any impression that your Honour was allowing the prosecution to enlarge their case simply because the accused, in answer to the case that has been put, might be acquitted of the crime of murder.[9]
[9]Ibid 1045-6.
Submissions for the accused Fares
Mr Thomson, in his written and oral submissions, asserted that the Crown should be precluded from relying on reckless murder as an alternative means of proving charges 1 and 2. At the outset of his oral submissions, he stated that Fares was in a different and much stronger position than Elliott where the argument was concerned.
Mr Thomson noted that throughout the trial, the liability of Fares has been alleged to derive from an agreement, arrangement or understanding with Elliott that Elliott would shoot people outside LM with an intention to kill or cause really serious injury.
Mr Thomson emphasised the importance of the provisions of the Act as they apply to Crown openings and defence responses. In this case, there was an explicit, written prosecution opening which elicited an explicit defence response. Criminal pleadings are important, as the Court of Appeal has said. The defence were entitled to act on the basis of the case as clearly pleaded by the Crown in the written opening and particularised before the start of the trial.
In response to a suggestion that he had been put on notice of the prospect of reckless murder being left by the discussion I had with Mr Bourke immediately after his opening address, and that it would have been open to him to raise any concerns he had about that prospect with me, Mr Thomson said, ‘All I can say your Honour, Mr Fares is entitled to rely on the prosecution case as pleaded and as particularised’.[10]
[10]Ibid 1043-4.
Mr Thomson submitted that this case is very different from all of the other cases relied upon by Ms Condon dealing with whether reckless murder should be left because of the matter of complicity which is central in the case against Fares. This would heighten the level of complexity flowing from a decision to leave reckless murder to the jury.
He submitted that there are a number of reasons why the Crown should be precluded from relying on reckless murder. First, he submitted that in specifying a particular agreement between Fares and Elliott, the Crown had built its case around an allegation that is fundamentally different from that which would be alleged if the agreement was to commit a reckless murder. To allow that would be to invite a conclusion of fact that has never been argued by the Crown, namely, that the two men were parties to an agreement that Elliott would shoot a gun while being reckless as to whether he would kill or cause really serious injury.
Secondly, Mr Thomson submitted that it is difficult to see how a person could be guilty of reckless murder under s 323(1)(c) of the Crimes Act 1958. Fares would have to have reached an agreement, arrangement or understanding to commit an offence which, by definition, relies on proof of a subjective intent on the part of the principal offender, Elliott.
Thirdly, Mr Thomson submitted that the way in which the Crown has thus far put the case against Fares has led him to make important forensic decisions which may have been different had it been known all along that the case would include the option of reckless murder. In this regard, Mr Thomson submitted that there might in those circumstances have been an application for a separate trial from Elliott. Mr Thomson elaborated on this contention in his written outline. He also submitted that had the defence known throughout the trial that the Crown would seek to have reckless murder left for the jury, the case would have been run differently. Specifically, he submitted that he would have cross-examined Ali Maghnie and Sara Mohammed[11] very differently. He submitted that discussions that Ali had with Elliott beforehand would have assumed much more importance and could have been explored.
[11]Elliott’s former intimate partner.
Finally, Mr Thomson submitted that leaving reckless murder as an alternative would cause such confusion as to imperil the fair trial of the accused. Reckless murder is rarely left to juries, and it would be especially unusual to do so where manslaughter by unlawful and dangerous act is to be left. To add to the complexity, in this case, the jury would have the unenviable task of considering whether Fares could be guilty of reckless murder by way of statutory complicity. Assuming that to be even possible, it would clearly be very confusing. Mr Thomson distinguished this case from all of those relied upon by Ms Condon, none of which was a complicity case. He submitted that:
a professor of evidence in criminal law would have difficulty dealing with the factual scenario in this case and the layers of complexity of legal niceties that your Honour would be asking the jury to undertake. It’s…going to present the jury with an impossible task.[12]
[12]Transcript 1039
Mr Thomson submitted that even if reckless murder was left in respect of Elliott, that did not mean it should be left where Fares is concerned. He submitted that it should not be left.
Submissions for the prosecution
Mr Bourke commenced his submissions by making the point that the charges on the indictment provide for the consideration by the jury of different offences that are largely reliant upon what the jury finds about intent.
Dealing with the submissions of Mr Thomson, Mr Bourke submitted that what would need to be proved against Fares is that he agreed to be involved in the essential facts of the offences in question, with the necessary mens rea for such offences. It is not the case that he needed to be made aware of, and agree to, a particular state of mind by Elliott.
Mr Bourke disputed the contention that to allow the Crown to go to the jury on reckless murder would be to fundamentally change the prosecution case against Fares.
In response to a question from me why the prospect of reckless murder had not been included in the Prosecution Summary or in his opening address, Mr Bourke noted that the case is already a complicated one. He submitted that were reckless murder to be left to the jury, the Crown case would still be principally based on the allegation of an intention to kill or cause really serious injury. He submitted that the case based on the usual murderous intent would swamp the reckless murder case.
As for the question of notice, Mr Bourke submitted that clear notice was given to the defence by what he said to the jury, which was explained in the absence of the jury.
Mr Bourke submitted that there was no clear material indicating that either accused would be prejudiced were reckless murder to be left. In respect of Mr Thomson’s submission about the different way in which he would have cross-examined Ali Maghnie and Sara Mohammed had he known that reckless murder would be relied upon, Mr Bourke disputed that there was a proper basis for those concerns.
Analysis
As I made clear in the running, I unreservedly accept that it would not be appropriate for reckless murder to be left for the consideration of the jury in most cases of murder. The care which must be exercised before such a step is taken has been highlighted in many of the cases which have been brought to my attention.
In R v Barrett,[13] Eames JA, with whose judgment the other members of the Court of Appeal agreed, noted:
It is quite rare for reckless murder to be left to a jury and appellate courts have strongly discouraged prosecutors from relying on that basis for a murder conviction. As Barwick CJ held in La Fontaine v The Queen (approving statements in R v Sergi ), if the issue is to be placed before the jury, at all, the facts of the case must make it necessary to do so, in a practical sense.
There are sound reasons why the courts are reluctant to permit reckless murder to be left to a jury. As Barwick CJ observed in Pemble v The Queen (and see, too, the judgment of Buchanan JA in R v TY ), the danger which the concept creates is that the jury might reason that the accused had, in fact, contemplated that death or really serious injury would be the probable consequence of his action merely because they thought that a reasonable person in his position would have foreseen one or other of those consequences as probable. As Buchanan JA observed in TY, the elements of reckless murder may cause particular confusion for a jury where, in addition to directions on that topic, the jury must also be directed by the trial judge as to murderous intention by way of intention to kill or to cause really serious injury and, additionally, directed as to the elements of unlawful and dangerous act manslaughter. In this case directions were given on all of those topics.
As has been emphasised many times by appellate courts, juries should receive instructions only on such matters as are necessary for them to know in order to decide the real issues in the case before them. It is essential that directions to a jury not be over-complicated by the trial judge, and to that end unnecessary directions should not be given at all. All that said, however, there may be cases where, to adopt the words of Barwick CJ in La Fontaine, it is “both necessary and appropriate in the circumstances of the case” to place the issue before the jury.[14]
[13](2007) 16 VR 240 (‘Barrett’).
[14]Barrett [49]-[51] (citations omitted).
Would it be necessary and appropriate for reckless murder to be left?
I turn to the question whether, absent the way in which this issue has come before the Court, it would, to paraphrase the words of Barwick CJ in La Fontaine, be both necessary and appropriate for reckless murder to be left for the consideration of the jury.
The shots fired in this incident were fired rapidly at night, at close range, from a moving vehicle towards a group of people queued or otherwise standing outside the entrance of LM. The evidence would suggest a motive for the attack to be found in the expulsion of Ali Maghnie from the venue and a desire to exact retribution, against a backdrop of hostility between Nabil Maghnie and Joey Hosri. There is nothing to indicate, however, that any of the victims of the shootings had any direct involvement with what took place earlier in the evening, or that there were any particular targets selected for the attack.
On one view of the case against Elliott, bearing in mind the lengths to which he and Fares had gone to arrive in a stolen motor vehicle at the point from which the shots were fired, Elliott’s close proximity to the victims, the fact that all four shots seemingly struck people standing outside the nightclub, the fact that two of those struck were security staff at the venue, and the fact that two shots were to the heads of victims and one to the shoulder,[15] there may be a strong case that Elliott intended not only to strike people but to cause death or really serious injury in carrying out his actions. That is understandably the central position of the prosecution.
[15]I have not failed to consider the contention seemingly advanced by Ms Condon during her cross-examination of the pathologist that a single shot may have been responsible for the death of both deceased. The jury may see fit to reject this contention if it is made.
Furthermore, this explains the contention made as to the terms of the agreement, arrangement or understanding between Fares and Elliott.
It seems to me, however, that there is an alternative view of the facts which could reasonably be taken by the jury, namely that the shots were fired indiscriminately by Elliott without any intention of killing or causing really serious injury to any person. If the shots were fired with an awareness of the probability that death or really serious injury would result, that subjective state of mind would be a proper basis for convictions for murder in the absence of the usual murderous intent. In my view, the circumstances of this case lend themselves well to such a formulation.
Mr Bourke submitted that the prosecution case on intentional murder would swamp the case based on reckless murder. That submission was in turn relied upon by Ms Condon as a reason why reckless murder should not be left.
Notwithstanding the view expressed by Mr Bourke as to the importance of the reckless murder mode of proof relative to the main prosecution contention, in my view, the formulation of the facts which might bring a consideration of reckless murder into play in the minds of the jury is by no means unlikely, and might indeed have significant appeal.
Ms Condon submitted that the introduction of reckless murder in this trial would add an ‘unnecessary and virtually incoherent layer of complexity’.[16] I do not agree. For the reasons I have indicated, reckless murder would allow for the consideration by the jury of a perfectly legitimate alternative path to a finding of guilt of murder against Elliott.
[16]Transcript 1024.
Furthermore, I do not believe that there would be anything incoherent about the way recklessness would be left to the jury, or that in the circumstances of this case, that there would be any prospect that the jury, equipped with proper directions of law, would in any way confuse what would be required for murder by recklessness with the test for manslaughter by unlawful and dangerous act.
As for the submissions made by Mr Thomson concerning the reliance by the Crown on statutory complicity where Fares is concerned, I see no reason why the agreement relied upon against Fares might not properly be alleged to be to fire shots at people outside LM with the intention of killing or causing really serious injury, or in the alternative, with the knowledge or awareness that death or really serious injury would probably result.
I have certainly turned my mind directly to the nature of the directions of law which would be required to be given in this case, whether reckless murder is left or not. I do not share the confidence of Mr Bourke that the directions required will not be complex. On any view, they will be, bearing in mind the need for manslaughter by unlawful and dangerous act to be left, and the presence on the indictment of an array of offences requiring explanation to the jury of a number of different requirements as to state of mind of the accused, and a consideration of subjective and objective tests.
The requirement for complex directions of law to be given to the jury is an unfortunate but unavoidable result of the number and nature of charges which quite properly were included on the indictment. In the circumstances, however, I do not consider that the inclusion of reckless murder would add as much complexity to the overall picture as asserted by Ms Condon and Mr Thomson. I consider that it will be possible, with the assistance of counsel, to fashion directions that will leave for the jury a clear pathway along which to proceed towards their eventual verdicts in the trial.
Should the Crown approach to reckless murder preclude reliance upon it?
At the outset, I make the observation that if the prosecution considered that reckless murder might become relevant in the trial, it should have been included in the Prosecution Summary. That is not to say that it would have needed to be opened to the jury, but the inclusion of the matter in the summary would have clearly put the defence on notice of the prospect of the issue arising, and they could have acted accordingly. As noted by Mr Thomson, the pleadings envisaged in a criminal trial as set out in the Act are important. The Crown should have included at least a mention of any alternative way in which the case may be sought to be put.
That said, I do not accept that what occurred in this trial was not sufficient to put the defence on notice immediately after Mr Bourke’s opening address on 22 March 2022 that the prosecution may seek to go to the jury on reckless murder.
Immediately after the jury left the Court at the conclusion of the prosecution opening address, I took the step of asking Mr Bourke to clarify the opaque comment he had made to the jury shortly beforehand. He did so in clear, albeit brief, terms. From that time onwards, in my view it was perfectly apparent to counsel for Elliott and Fares, both of whom are very experienced members of counsel well acquainted with the atmosphere and flow of criminal trials, that the prosecution may seek to introduce reckless murder into this trial.
If counsel had any concerns about that prospect, or whether it might be permitted by the Court to be agitated by the Crown later in the trial, it would have been open to either of them to raise such concerns with me, which could have triggered a resolution of, or at least a discussion of this issue, at the very commencement of this trial.
Rather than do that, it can only be concluded that counsel for each accused made a forensic decision not to ventilate any concerns then, but to leave such a step until the prosecution case was closed.
Bearing in mind the experience and expertise of counsel, it is inconceivable that they would have remained silent about the prospect which had been raised by Mr Bourke had they considered that the resolution of the question whether reckless murder should be left or not would have a material bearing on the way in which they would conduct the defence of their respective clients. That would have been conduct fraught with danger.
I do not accept that the defence of either accused would have been conducted in any significantly different way had the question of reckless murder been included in the Prosecution Summary, or indeed, opened to the jury.
Specifically, I do not accept that any prejudice would flow to either accused were reckless murder now to be left to the jury.
In the circumstances of this case, it is both necessary and appropriate that reckless murder be left for the consideration of the jury. This would not involve any substantial change to or enlargement of the prosecution case. It would cause no prejudice or unfairness to the accused, and would be in the interests of justice.
An aspect of Ms Condon’s submissions
I cannot leave this matter without dwelling briefly on the submissions of Ms Condon summarised in paragraph [22]. In my view, a fair reading of the transcript of the hearing preceding this ruling would not support the implications – indeed, accusations – contained within those submissions as to my performance of my duty as a judge in this part of the trial. I refute Ms Condon’s contentions. In my view, they were not integral to the submissions she sought to advance, were gratuitous, and should not have been made. The need for brave and robust advocacy is no justification for the making of submissions which stray on the wrong side of the line separating proper advocacy from that which cannot be justified.
Having said these things, I hasten to add for the benefit of the accused and Ms Condon that nothing which has occurred would deflect me from my duty of doing everything possible to ensure a fair trial for all accused in this or any other trial.
Conclusion
For the reasons I have stated, in my view, should the position of the prosecution after all of the evidence is concluded in this case be that reckless murder should be left for the consideration of the jury, then it will be left.
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