John Ibrahim v Regina

[2006] NSWDC 45

CITATION:	John Ibrahim v Regina [2006] NSWDC 45
JUDGMENT DATE:	11 October 2006
EX TEMPORE JUDGMENT DATE:	08/25/2006
JUDGMENT OF:	Finnane QC DCJ
DECISION:	I grant a certificate pursuant to section 3 of the Costs in Criminal Cases Act 1967.
CATCHWORDS:	costs in criminal cases - prosecution case - lack of merit - pervert the course of justice - unfavourable witness - controlled operations
LEGISLATION CITED:	Costs in Criminal Cases Act ss. 2, 3 Law Enforcement (Controlled Operations) Act 1997
CASES CITED:	Ridgeway v The Queen (1995) 184 CLR 19 Robinson v Woolworths Ltd [2005] NSWCCA 426
PARTIES:	John Ibrahim Regina
FILE NUMBER(S):	05/11/0361
COUNSEL:	Applicant: Ms E Fullerton S.C. Respondant: Ms S Bowers
SOLICITORS:	Applicant: Nasser Lawyers Respondant: Ms K Nightingale for NSW DPP

Introduction.

1 From time to time, criminal prosecutions are launched, which depend largely on the evidence of active criminals. Very often, these prosecutions concern very serious events and it is in the public interest that such prosecutions proceed. However, this case is not one of those. Indeed, it is a case, which from the beginning could be said justifiably to lack merit.

2 On the 20th of February 2006, the accused, John Ibrahim appeared before me charged with two offences. The first Count alleged that he did an act, namely, "Threaten Roy Malouf and members of his family intending to pervert the course of justice."

3 The second count alleged that he "did threaten to do a detriment to Roy Malouf, believing Roy Malouf, may be called as a witness in judicial proceedings, namely, the Director of Public Prosecutions v Michael Ibrahim."

4 Roy Malouf attended court on the first day, and gave evidence on the voir dire. I formed a distinctly unfavourable opinion of his veracity and on the 21st of February 2006, the Crown Prosecutor announced that there would be no further proceedings in respect of the second count.

5 In my opinion, a short conference with Roy Malouf, would make it clear to any lawyer, that no reliance could be put on anything he said, unless it were corroborated by independent and reliable evidence. The Crown was entirely justified in taking the decision not to proceed further on the second count.

6 The first Count relied partly on the evidence of Roy Malouf, but more importantly, on conversations recorded on a listening device between Roy Malouf and the accused. There was also some Police evidence.

The facts leading To This Case.

7 The facts which I now set out, are those which I found in my judgment of the 31st of March 2006 (see Regina v John Ibrahim [2006] NSWDC 6)

“On the 14th of July 2003 a number of men led by Michael Ibrahim went to the Guildford area, to the home of Roy Malouf, Richard Malouf and Pierre Malouf. Pierre Malouf was the father of Richard and Roy Malouf. During the course of the day, one of the group of men with Michael Ibrahim attacked Roy Malouf with a baseball bat and broke one of his legs. An ambulance came and took him to hospital. The Ibrahim gang apparently left the scene, but returned later, and when Roy Malouf was away from the house, shots were fired by the group led by Michael Ibrahim and these injured Pierre Malouf and Richard Malouf. For present purposes, it does not matter who fired the shots, nor does it matter who attacked Roy Malouf.

Detectives from the New South Wales Police Force commenced to investigate the bashing and shootings of the Malouf family, but were unable to get their cooperation. Police from Granville obtained a search warrant to search the Malouf home. In that home they found items which suggested that members of the Malouf family were engaged in theft and the possession of firearms.

Roy Malouf gave evidence before me and was questioned about what had happened. I have no doubt that be, his father and his brother, were engaged in criminal activities and that those who attacked them were engaged in similar activities. The Malouf's and the Ibrahim's knew one another, apparently from the time that Michael Ibrahim had been at school with Roy Malouf.

The investigating detectives eventually persuaded Roy Malouf, Richard Malouf and Pierre Malouf to give statements. Roy Malouf commenced to give a statement on the 10th of September 2003 and finished it on the 17th September 2003. Richard Malouf gave a statement on the 25th of September 2003. Pierre Malouf commenced a statement on the 13th of October 2003 and finished it on the 20th of October 2003.

These statements were produced after Sergeant Tzinberg obtained from the New South Wales Crime Commission a summons requiring Roy Malouf to attend a Crime Commission hearing on the 12th of September 2003. This summons was served on Malouf on the fourth of September 2003, the day before he was to meet Sam Ibrahim for the purpose of having a conversation with him in which he was fitted with a listening device, and with a view to finding out if Sam Ibrahim would make threats against the Malouf family.

There has been considerable debate during these proceedings about the purpose that lay behind the getting of the Crime Commission summons. The evidence of the police witnesses was that the summons was obtained for the purpose of persuading Roy Malouf that if he and his family members did not make statements, then he would have to attend the Crime Commission under compulsion and give evidence. Because each of Roy Malouf, Pierre Malouf and Richard Malouf made statements, the Crime Commission hearing was cancelled.

I have given a great deal of thought to this matter because it seemed to me that the primary purpose of getting the summons may have been something other than the holding of an inquiry by the Crime Commission. However, I'm not able to come to a firm conclusion that the police sought the summons for some collateral purpose, because, having gone over the transcript a number of times, I have come to the conclusion that the police were motivated by a desire to get Roy Malouf, to give evidence, either by way of a statement to them or to a Crime Commission hearing. I make that finding even though I am not entirely satisfied that Mr Tzinberg gave truthful evidence about this matter.

That does not dispose entirely of the matter, because the police told Roy Malouf to take the summons to the meetings with Sam Ibrahim and John Ibrahim. They told Malouf to tell Sam Ibrahim and John Ibrahim that the Crime Commission had summoned Malouf. The other pretence that Malouf was to engage in was that he just wanted to discuss things to see if the two families could sort out their differences. The whole purpose of the meetings, in my opinion, was to see if either of the Ibrahims would make threats. According to Malouf and to Maroun Charbel, John Ibrahim had made previous threats. In my opinion, the Police were entitled to give some credence to these claims. After all, there had been a bashing and there had been shots fired.

Clearly enough, a Crime Commission summons should be used only for the purpose for which it was issued, namely to require the recipient of it to attend the hearing of the Crime Commission, and the Police should not have instructed Malouf to take a Crime Commission summons to the meetings with the Ibrahim's. However he did not do so but he did tell both of the Maloufs that he had received the summons. He did not tell John Ibrahim that the hearing had been cancelled, nor that the summons was spent.

When the police arranged for Malouf to attend the meetings with the Ibrahims, in my opinion, Malouf became their agent and it was their duty to ensure that he behaved properly and lawfully. At the first meeting with Sam Ibrahim, he made it quite plain that he would say and do what every felt like saying and doing. The way in which he behaved at that interview should have caused the police to do something other than send him in to speak to John Ibrahim, with no effective controls imposed on what he might say or do.

The question also arose as to whether the police ever turned their minds to the question of getting authority to conduct a controlled operation under the terms of the Law Enforcement (Controlled Operations) Act 1997. That Act, enacted after Ridgeway's case, provides a method for law enforcement officers to engage in criminal conduct for the purpose of catching criminals and provided the persons authorised act within the terms of their authority they do not commit a criminal offence. The Act provides for applications to a senior officer. Those applications may be accepted or refused (See section 6). I am satisfied that no serious consideration was given to such an application, and certainly nothing was discussed with Inspector Ryan, who was the officer who would have had to authorise the application being made to the Deputy Commissioner of Police.

The police claimed that they told Malouf to tell the truth when he met John Ibrahim, not to say too much and to let Ibrahim do the talking. I am unable to conclude with certainty that they did not give him these instructions. At the same time, they knew that during the course of the discussions, he would certainly tell some lies. His reason for being at the meeting was itself a lie, his claims about police pressure were a lie and his claims about the Crime Commission summons were a lie. They had every reason to believe that he would tell other lies during the course of the meeting, since his general character as a criminal would give them that reason. The reason that the police wanted this meeting was that they wanted evidence against John Ibrahim in the form of threats against the Malouf family. I am satisfied that they sent Malouf to these meetings for the purpose of getting evidence of threats by Ibrahim against the Maloufs and that they knew from the meeting with Sam Ibrahim that Malouf would tell lies and would try to inveigle John Ibrahim to make a threat.

During the course of the discussion, Malouf importuned John Ibrahim to make threats by persistently asking him what he would do and begging him to do something to sort things out. He claimed that he did not wish to help the police, but he was being pressured to do so. By making continual requests and frequent flattering comments, he managed to persuade John Ibrahim to say things which, on the Crown's submission, could be regarded as implied threats to interfere with witnesses. If the words spoken by John Ibrahim amounted to a criminal offence, the solicitation of that offence made Malouf someone who was aiding and abetting, counselling and procuring it.”

The Law and my conclusions.

8 Having made those findings of fact, I then went on to consider the law, particularly in light of The Law Enforcement (Controlled Operations) Act 1997 and the decisions of Ridgeway v the Queen (1995 184 CLR 19) and Robinson v Woolworths Limited [2005] NSWCCA 426). My conclusion was, applying the law, that I should exclude from evidence at the trial, all of the conversations between Roy Malouf and John Ibrahim, which were recorded on a listening device. I expressed my final conclusion in this way:

"There was impropriety of such a type that the evidence should be excluded."

9 Because of this decision of mine, the trial did not proceed further, and on the third of May 2006, the Crown prosecutor, informed me that the Director of Public Prosecutions had decided to take no further proceedings in respect of Count one.

The application for costs and my decision.

10 Following this, an application was made, pursuant to the Costs in Criminal Cases Act 1967 that I should grant a certificate pursuant to Section 3 of that Act.

11 The Costs in Criminal Cases Act, 1967 provides in section 2 for the granting of a certificate for the payment of costs in a number of circumstances, including the circumstance that the Director of Public Prosecutions makes a decision that there will be no further proceedings in the case. That is what happened here.

12 Section 3 is in the following terms:

" Form of certificate

(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.”

13 In my opinion, before the proceedings were instituted, the prosecution was in possession of evidence of all the relevant facts that were before me. It had the statements of the police officers, the statements of Roy Malouf and a listening device record and transcript. One of the findings which I made was that no application was made to the Deputy Commissioner of Police for permission to undertake a controlled operation. That finding was based on police evidence, which was available to the prosecution before the proceedings commenced.

14 Before the proceedings commenced, it must have been obvious to the prosecution that Roy Malouf was a witness of no credibility and that he attempted to trick John Ibrahim into making a threat. All of the circumstances of his discussions with John Ibrahim were known to the prosecution.

15 Having regard to all these matters, in my opinion, it was not reasonable for the prosecution to institute the proceedings.

16 I grant a certificate pursuant to section 3 of the Costs in Criminal Cases Act 1967.

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