DPP v Zogheib (Ruling No 1)
[2014] VSC 539
•21 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0098
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUSTAFA ZOGHEIB |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 October 2014 |
DATE OF RULING: | 21 October 2014 |
DATE OF REASONS: | 24 October 2014 |
CASE MAY BE CITED AS: | DPP v Zogheib (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2014] VSC 539 |
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CRIMINAL LAW – Evidence – Incriminating conduct – Conduct intractably neutral – Jury Directions Act 2013, ss 22 and 24
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Chadwick QC | Office of Public Prosecutions |
| For the Accused | Mr Toohey | Melasecca Kelly Zayler |
HIS HONOUR:
On 21 October 2014, I ruled that the prosecution could not rely on certain conduct as incriminating conduct. I said that I would give my reasons later. I now give my reasons.
At the time of my ruling the relevant indictment was Indictment No C1309390.3.[1] That indictment contained five charges of conduct endangering life and one charge of being a prohibited person using a firearm. All of those charges arose from an incident that occurred outside the accused’s home in the early hours of 10 August 2013.
[1]On 21 October 2014, subsequent to my ruling, I permanently stayed Indictment C1309390.3 as a result of the prosecution filing over Indictments C1309390.5 (5 charges of conduct endangering life) and C1309390.6 (1 charge of prohibited person possess firearm). The accused pleaded not guilty to the charges in Indictment C1309390.5 and guilty to the charge in Indictment C1309390.6.
The accused at the time of the incident occupied an adjoining garage to his parents’ residence at 1 John Paul Drive, Hillside. The garage had been converted into a bedroom. The premises had CCTV cameras installed on the exterior of the main residence and the converted garage. The footage captured by the CCTV cameras could be viewed from a monitor in the converted garage. The recording unit for the CCTV cameras was positioned in the roof cavity above the monitor. There were leads running from the monitor behind the plaster wall to the recording unit.
The prosecution case may be summarised as follows. On 10 August 2013 at about 4.40am, the accused left the converted garage and got into a silver Honda sedan registered WSD 447, which was parked in the driveway at 1 John Paul Drive, Hillside. Almost immediately, a burgundy Holden station wagon registered number RZU 429, which had parked a short time before in John Paul Drive just east of and facing in the direction of the accused’s home, drove up and stopped in the accused’s driveway, close behind the Honda. The accused got out of the Honda on the arrival of the Holden. The occupants of that Holden were Omar Tiba, Mohamed Tiba, Zain Tiba and a fourth male who has not been identified. After Omar and Mohamed Tiba stepped out of the Holden, the accused produced a handgun from the front of his grey track pants and pointed it directly towards Mohamed and Omar Tiba before running back towards the front door of the converted garage. Mohamed Tiba followed the accused. The accused fired one shot from his handgun towards Mohamed Tiba as he chased him. Mohamed Tiba immediately turned and ran back to the Holden.
After the first shot was fired by the accused, Omar Tiba, Zain Tiba and the forth unidentified male also retreated. Omar Tiba was holding a handgun, but it was never fired. The accused fired a second shot in the direction of the males. The accused walked from the front door of the garage towards the Holden. On reaching the corner of the garage, the accused raised the handgun and used the corner of the garage to cover and stabilise himself whilst he aimed and fired directly at Zain Tiba. At that point, Zain Tiba was taking cover behind the front driver’s door of the Honda. After firing this shot, the accused turned and headed back towards the front door of the converted garage. Omar Tiba took cover behind the Holden, while Zain Tiba took cover behind the Honda before running to the Holden and entering from the driver’s side.
Once the four males were in the Holden, they reversed out from the driveway crossover and headed west towards Panorama Drive. The accused took aim and discharged a further two shots at the Holden as it was driving out of John Paul Drive towards Panorama Drive. At least five bullets were discharged from the handgun by the accused. One of the bullets discharged by the accused struck the roof of the Honda causing some damage. The accused waited a short time after the Holden left before he left in the Honda.
Police were notified of shots being fired in John Paul Drive and, soon after, attended at 1 John Paul Drive to investigate the incident. One of the police officers who attended later on the morning of 10 August 2013 was Detective Leading Senior Constable Andrew Eyries. He inspected the garage and saw the CCTV monitor operating. He also observed a flashing light emitting through a vent in the ceiling and suspected it to be a recording unit for the CCTV cameras. At about 11.25am on 10 August 2013, Eyries spoke to the accused over the phone. He asked the accused if the CCTV cameras installed at the premises were recording. The accused stated that the cameras were not recording, that they were new cameras, and that the recording unit was yet to be connected. For convenience sake, I will refer to this representation that the recording unit was yet to be connected, which the prosecution alleges was incriminating conduct, as ‘conduct A’.
Early in the morning of 19 August 2013, there was another incident where the accused again fired shots from a handgun, this time in the course of a car chase. The accused and an associate named Ihsan El-Chakik were in a Holden Utility that chased after a Jeep Patriot driven by a young man named Taylor Horley. Mr Horley had a short time before the chase been driving back and forth past 1 John Paul Drive, looking for the home of a friend named Antonia Kourkoulis. The accused, who observed the Jeep on his CCTV monitor, became concerned about the presence and movements of the Jeep, which led to the accused chasing after the Jeep in the Ute driven by El-Chakik. The accused’s CCTV cameras captured the accused and El-Chakik hurriedly getting into the Ute and speeding after the Jeep in John Paul Drive. A short time later, in nearby Gourlay Road, where the Ute caught up with the Jeep, the accused fired several shots at the Jeep, one of which shattered its rear windscreen. The Jeep managed to get away, while the Ute returned soon after to 1 John Paul Drive. Fortunately, no-one was injured in this shooting incident.
There is no dispute about the accused’s involvement in the incident on 19 August 2013. Indeed, in relation to that incident, the accused was arraigned and pleaded guilty on 12 September 2014 to one charge of reckless conduct endangering life, one charge of being a prohibited person using a firearm, and an unrelated charge.
Early on the morning of 19 August 2013, after the car chase, Detective Eyries again attended at 1 John Paul Drive, Hillside. On this occasion, he spoke to the accused in person. Again, the accused advised him that the CCTV system was not recording. For convenience sake, I will refer to this representation that the CCTV system was not recording, which the prosecution alleges was incriminating conduct, as ‘conduct B’. Eyries looked at the roof cavity in the converted garage where he suspected the recording unit was located and saw that the vent through which he had seen the flashing light on 10 August 2013 had been removed. He saw that the recording unit was not connected.
On 20 August 2013 at approximately 4.10pm, police executed a search warrant at the accused’s residence. They seized the recording unit from the roof cavity of the converted garage. The prosecution alleges that the recording unit was in fact ‘hidden’ in the roof cavity. For convenience sake, I will refer to this alleged conduct, namely, that the recording unit was hidden in the ceiling cavity, which the prosecution alleges was incriminating conduct, as ‘conduct C’.
Initial analysis by police of the hard drive of the recording unit (the HDD) suggested it had not recorded any of the events of either 10 August 2013 or 19 August 2013. However, further analysis of the HDD, using data recovery techniques, resulted in the recovery of relevant footage for both dates.
The depositions include a statement from senior forensic officer Paul Tierney from the Audio Visual Unit of the Victorian Police Forensic Services Department. His statement deals with the analysis of the HDD. The final paragraph of his statement reads as follows:
From the arrangement of the data on the HDD, the CCTV system appears to have been switched off at approximately 1:58am on 19 August 2013 and then it appears that the HDD may have been formatted between this time and 1:20:33pm on 20 August 2013 and this has resulted in the footage only being accessible by data recovery methods.
The time period in which, according to Tierney, the HDD appears to have been formatted commenced shortly after the car chase on 19 August 2013 when the accused fired at the Jeep. For convenience sake, I will refer to the formatting of the HDD described by Tierney, which the prosecution also alleges was incriminating conduct, as ‘conduct D’.
At all material times referred to above, the accused was not supposed to be in possession of a firearm at all because he was a prohibited person as defined by s 3 of the Firearms Act1996 (Vic). Relevantly, s 3 provides that:
prohibited person means … a person, in relation to whom, not more than 12 months have expired since that person was found guilty by a court, whether in Victoria or in another State or a Territory of … an indictable offence….
The accused fell within the definition of a ‘prohibited person’ as a consequence of being convicted of indictable offences in February and July 2013. At Sunshine Magistrates’ Court on 12 February 2013, the accused was convicted of offences including obtaining property by deception, theft and attempting to obtain property by deception and was placed on a community corrections order for 15 months. On 4 July 2013 at Sunshine Magistrates’ Court, he was convicted of offences including theft and possession of drugs of dependence and was placed on a community corrections order for 12 months.
Clearly, as at 10 August 2013 and 19 August 2013, he was a prohibited person. He was also, as at those dates, on bail for fraud matters and his bail conditions included a curfew requiring him to remain at home between 10.00pm and 6.00am each day. He was also not permitted to drive, as his licence had been suspended by the Sunshine Magistrates’ Court on 4 July 2013 for six months from that date.
Notice of Incriminating Conduct
It is against that background that I now turn to the notice of incriminating conduct filed and served by the prosecution. Relevantly, the notice reads as follows:
The conduct that the prosecution proposes to rely on as evidence of incriminating conduct is that at an unknown date after 10 August 2014[2] [sic] the accused:
[2]Tierney’s statement suggests the formatting occurred on either 19 August 2013 or 20 August 2013.
(a)formatted the CCTV hard drive in order to erase the footage contained on it; and
(b) hid the hard drive to try to prevent the police from finding it.
Further conduct that the prosecution proposes to rely on as evidence of incriminating conduct is a conversation over the telephone between the accused and D/S/C Andrew Eyries on 10 August 2013, during which the accused told D/S/C Andrew Eyries that his CCTV camera system which had been in place and operative at the time of the events on 10 August 2013, was inoperative as the recording unit was yet to be connected.
Further conduct that the prosecution proposes to rely on as evidence of incriminating conduct is a conversation between the accused and D/S/C Andrew Eyries on 19 August 2013, during which the accused told D/S/C Andrew Eyries that his CCTV camera system which had been in place and operative at the time of the events on 10 August 2013 was inoperative, as the recording unit was not connected.
It will be appreciated from these extracts from the notice that the prosecution relies on the conduct which I have described as conduct A, B, C and D as the relevant incriminating conduct. It will also be appreciated that only conduct A - the representation on 10 August 2013 that the recording unit was not recording - occurred before the serious car chase incident that took place on 19 August 2013.
Counsels’ arguments
Mr Toohey on behalf of the accused opposed the admissibility of the alleged incriminating conduct. His initial focus was on conduct C and D, that is, the hiding of the recording unit and the formatting of the HDD.
There were three limbs to Mr Toohey’s submissions. First, there was, he said, no evidence that the accused had engaged in the relevant conduct or had engaged in it deliberately. The fact that the recording unit was located in the ceiling did not mean it was hidden there. As for the formatting of the HDD, others had access to the unit and could have attempted to erase the footage from the hard drive, such as El-Chakik, who was involved in the incident on 19 August 2013. Alternatively, Mr Toohey submitted that even if the accused had formatted the HDD, it could have been formatted accidentally by pushing the wrong button on the unit.
Secondly, even if it was open to find that the accused had deliberately engaged in the relevant conduct, that conduct was not capable of supporting a finding that he had done so because he did not believe he had acted in self-defence on 10 August 2013, which was how the prosecution sought to use the evidence. Mr Toohey submitted that because the footage recorded on the unit included footage of other serious misconduct, the formatting of the HDD was ‘intractably neutral’. The formatting occurred after the incident on 19 August 2013 and possibly a very short time after that incident. That incident, Mr Toohey submitted, was a very serious incident during which the accused shot several times at the innocent occupants of the Jeep. It was not possible to discount that event as the reason for the accused formatting the HDD, as the footage of the events of 19 August 2013 in John Paul Drive implicated the accused in that incident, even though the shooting in the course of the car chase occurred off camera in nearby Gourlay Road. Mr Toohey also submitted that the footage itself of the incident on 10 August 2013 supported the accused’s claim of self-defence. Even if the formatting was prompted by concerns about the footage of the incident on 10 August 2013, Mr Toohey said there were other reasons for such conduct apart from a belief that he had not acted in self-defence in firing at the occupants of the Holden. The accused was a prohibited person and the footage showed him in possession of a gun, a serious offence under the Firearms Act1996 (Vic). The footage also showed him breaching his bail curfew and driving off in the Honda in breach of his driving licence suspension. Mr Toohey said the accused may also have wanted to avoid the use of the footage by police to identify the Tibas as having been involved in the incident on 10 August 2013 for fear that the Tibas might blame him.
Thirdly, Mr Toohey submitted that even if it was open to find that the accused had engaged in the relevant conduct and that he did so because of a belief that he did not act in self-defence when firing the gun on 10 August 2013, the evidence should be excluded – presumably under s 137 of the Evidence Act 2008 (Vic) - because of unfair prejudice to the accused in having to explain why he engaged in the alleged incriminating conduct. Mr Toohey said the accused would be obliged to reveal other criminality on his part, particularly the serious offending on 19 August 2013. In relation to what I have referred to as conduct A and B, namely representations by the accused on 10 August 2013 and 19 August 2013 that the recording unit was not connected, Mr Toohey made similar submissions, but of course, as noted above, conduct A pre-dated the shooting incident on 19 August 2013.
The prosecutor, Mr Chadwick QC, submitted in response that it was open to the jury to find that the accused hid the recording unit in the garage ceiling and formatted the HDD on 19 August 2013 or 20 August 2013, as suggested by Senior Forensic Officer Tierney. Mr Chadwick said it was open to the jury to find the accused engaged in all of the conduct relied upon because of a belief that he had not acted in self-defence on 10 August 2013 when discharging the gun. Mr Chadwick said the formatting of the HDD was inconsistent with him having acted in self-defence on 10 August 2013. In respect of conduct B, C and D, Mr Chadwick submitted it was unlikely to have been prompted by the car chase incident on 19 August 2013 because what was caught on the CCTV cameras was not particularly significant, being only the preliminary events in John Paul Drive, not the events in Gourlay Road where shots were fired at the Jeep. The incident of much greater significance which was recorded on the CCTV footage was the accused firing the gun on 10 August 2013. Mr Chadwick submitted the concerns about being in possession of a gun whilst a prohibited person, breaching curfew and driving while suspended were minor issues by comparison. In relation to the prejudice argument, Mr Chadwick said the jury would hear about the fact that he was a prohibited person anyway, assuming that Mr Toohey’s request to sever the Indictment was refused.
The law
Section 24 of the Jury Directions Act 2013 (Vic) (‘JD Act’) provides as follows:
(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 23; 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.
Section 22 of the JD Act defines ‘conduct’:
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
I note in relation to conduct C, the alleged hiding of the recording unit, that the existence of the leads running from the monitor behind the plaster wall to the recording unit in the roof cavity, as described in [3] above, makes it difficult for the prosecution to maintain that conduct C occurred ‘after the events alleged to constitute an offence charged’ as required by the definition of conduct in s 22 of the JD Act. Even if the recording unit was ‘hidden’, it appears likely that this occurred before the incident on 10 August 2013.
Section 22 of the JD Act also defines ‘incriminating conduct’:
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
Here, there is no dispute that the notice was served in accordance with s 24(1)(a) of the JD Act. As to s 24(1)(b), the principles regarding the admissibility of post-offence conduct were comprehensively summarised and re-stated in R vCiantar,[3] albeit that case preceded the JD Act. In Ciantar, the Court said at paragraph [40]:
We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post-offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases.
[3][2006] VSCA 263; (2006) 16 VR 26 (‘Ciantar’).
Conclusion
I consider this to be one of those unusual cases where the conduct is equally consistent with other offences or intractably neutral. Conduct B and D, namely, a representation and the formatting, occurred a short time after a serious incident on 19 August 2013. The CCTV footage included footage which implicated the accused in that incident. It showed the accused and El-Chakik hurriedly getting into the Ute and chasing after the Jeep in John Paul Drive, the same Jeep which the accused shot at a short time later in Gourlay Road. Whilst it would be open to find that conduct B and D constituted implied admissions of wrongdoing, it would not be open to a jury to find that he engaged in such conduct because he believed he had engaged in wrongdoing on 10 August 2013.
As for conduct A, which occurred shortly after the incident on 10 August 2013, while it is open to a jury to find that it was a lie, it is not, in my view, open to a jury to find that it was told because of a belief that he had not acted in self-defence when discharging the gun, rather than a belief that he was guilty of another serious offence, namely, being a prohibited person in possession of a firearm, an offence that constituted a breach of two CCOs imposed in February and July 2013. The content of the CCTV footage itself, which shows four males arriving at his home in the early hours of the morning, parking directly behind his car, getting out of their car and advancing on the accused, one of them chasing him and one in possession of a hand gun, makes it even more difficult to conclude that the lie on 10 August 2013, that the recording unit was not recording, was told because of a belief that he had not acted in self-defence in shooting at the males. And, as for conduct C, even if a jury found that the accused had hidden the recording unit in the roof cavity, it would not be open to find that he had done so after the incident on 10 August 2013 and hence it could not be regarded as ‘incriminating conduct’.
Accordingly, I ruled that the conduct described in the prosecution’s notice could not be relied upon as incriminating conduct.
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