R v Barakat; R v Younes (No 1)

[2016] NSWSC 1152

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Barakat; R v Younes (No 1) [2016] NSWSC 1152
Hearing dates:	9 August 2016
Decision date:	19 August 2016
Jurisdiction:	Common Law - Criminal
Before:	N Adams J
Decision:	The application that the trial of David Younes be severed from that of Mahmoud Barakat is refused.
Catchwords:	CRIMINAL LAW – accessory after the fact to murder – application to sever trial of alleged accessory from that of principal – where evidence against principal said to be inadmissible against accessory and prejudicial to him – application refused
Legislation Cited:	Crimes Act 1900 (NSW), s 349(1) Criminal Procedure Act 1986 (NSW), s 21(2) Evidence Act 1995 (NSW), s 91 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 14(1)(c), 17(1)
Cases Cited:	Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 Dupas v R [2010] HCA 20; 241 CLR 237 Gilbert v The Queen [2000] HCA 15; 201 CLR 414 Madubuko v R [2011] NSWCCA 135 R v Baartman (unreported, NSWCCA, 6 October 1994) R v Fernando [1999] NSWCCA 66 R v Gibb & McKenzie [1983] 2 VR 155; (1982) 7 A Crim R 385 at 162 R v Middis (unreported, Supreme Court of NSW, 27 March 1991) R v Pham [2004] NSWCCA 190 Saunders v R (1994) 72 A Crim R 347 Symms v R [2003] NSWCCA 77 Webb and Hay v R (1994) 181 CLR 41
Category:	Procedural and other rulings
Parties:	David Younes (Applicant) Regina (Respondent)
Representation:	Counsel: Gregory Stanton (Applicant) Peter McGrath SC (Respondent)   Solicitors: Elie Rahme and Associates (Applicant) Solicitor for Public Prosecutions (Respondent) Kiki Kyriacou Lawyers (Accused Barakat)
File Number(s):	2013/00239166

Judgment

Introduction

1. By Notice of Motion filed on 4 April 2016 David Younes (“the applicant”) makes application for orders that his trial be severed from the trial of his co-accused Mahmoud Barakat (“Barakat”) pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW) and that his trial date be vacated. The joint trial of both accused is currently listed to commence on 5 September 2016 before me. An affidavit of Elie Rahme, solicitor, sworn 4 April 2016 was filed in support of the application and read at the hearing of the motion.

2. The Crown opposes the orders sought.

3. The applicant’s co-accused Barakat is charged with the murder of Ali Jammas (“the deceased”) on 12 July 2013 at Abbotsbury. The applicant is charged with being an accessory after the fact to that murder contrary to s 349(1) Crimes Act 1900 (NSW). The basis of the accessorial liability of the applicant is, on the Crown case, that on 6 and 14 August 2013 he refused to comply with a Form of Demand under s 14(1)(c) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) to identify the driver and passenger of his car, registration BU51NU, on the day on which the deceased was killed.

4. The Crown case is that Barakat was in possession of the applicant’s car at the relevant time and that the applicant refused to comply with the Form of Demand in order to help him evade detection for the murder of the deceased.

The Crown case

5. It is necessary to outline the factual background to the charges brought by the Crown against the applicant and his co-accused. No part of the brief of evidence in support of the Crown case at trial was put before me on this application, with the exception of a statement of the informant Detective Sergeant Christian Olivares dated 12 August 2013 and material showing the frequency and location of telephone calls between the applicant and Barakat. Both counsel for the applicant, Mr Stanton, and the Crown Prosecutor agreed that the Crown Case Statement filed in the proceedings provides sufficient detail concerning the Crown case to enable me properly to consider the application. I have necessarily had regard to that document in determining this application but the references to it in this judgment are not intended to constitute any comment by me about the strength or otherwise of the Crown case.

6. The case against Barakat for murder, and thus against the applicant for being an accessory after the fact to murder, is circumstantial. It relies upon closed-circuit television, telephone intercepts, geo-positioning by way of call charge records (“CCRs”) and reverse call charge records (“RCCRs”), listening device evidence, relationship evidence and other circumstantial evidence.

Events of 12 July 2013

7. At 10 am on 12 July 2013 the deceased was shot no less than six times in the driveway of his home at 12 Thorpe Place in Abbotsbury. He had been bringing his rubbish bins in from outside and talking to a friend on his mobile phone. After he was shot the deceased walked back into the house where he collapsed and died shortly thereafter.

8. The Crown case is that there were two men in the car, namely Barakat and an unknown male, and that both men waited at Thorpe Place from 6.30am on the morning of 12 July 2013 for an opportunity to shoot the deceased. The charge of murder is brought against Barakat on the basis of joint criminal enterprise thus removing the need for the Crown to prove which of the two men the shooter was. Despite this, there is evidence that the physical description of the shooter is similar to that of Barakat.

The car (BU51NU)

9. The Crown case is that the car used by Barakat and the unknown male was a silver 2005 Subaru WRX sedan with registration BU51NU belonging to the applicant. The car has distinctive features, including aftermarket 18-inch DC6 Bronze and Silver Lenso wheels, a sunroof and a loud sports exhaust. There was only one key available and the ignition required the driver to enter a PIN code.

10. In July 2013, the applicant was living at 151 Wycombe Street in Yagoona. CCTV cameras in place at those premises record activity in his driveway, the entrance to a detached granny flat and in the street.

11. At 3:11pm on 10 July 2013, CCTV footage captures Barakat attending 151 Wycombe Street and meeting with the applicant. They enter the detached granny flat together. At 4:21pm, the applicant and Barakat emerge from the granny flat and walk towards BU51NU, which is parked on the footpath outside the house. Barakat makes a short telephone call. After shaking hands with the applicant, Barakat enters BU51NU through the driver’s side door and drives away.

12. CCRs for the telephone number used by Barakat show that a call was received from a person using the applicant’s number at 3:12am on 12 July 2013. The call lasted 82 seconds.

13. At about 6:30am on 12 July 2013, CCTV footage in Thorpe Place captures a vehicle resembling BU51NU driving past 12 Thorpe Place and parking a short distance from the house. The car is observed to be stationery, with its engine off, between 6:30am and 10am. No one is seen getting in or out of the car in that period of time.

14. Shortly after 10am, a person, who on the Crown case is more likely to be Barakat, gets out of the car via the front passenger door and runs towards 12 Thorpe Place. He is dressed in hooded top, dark track pants and white sneakers. At around 10:02am, the person runs back to the waiting car, enters through the front passenger door and is driven off at speed.

15. CCTV shows Barakat returning the car BU51NU to the applicant’s residence at 151 Wycombe Street in Yagoona at about 10:30am on 12 July 2013. He leaves something in the letter box, which on the Crown case is a set of keys. He then runs away in the direction of Rock Street.

16. On the Crown case, the time between the murder at 10:01am and the return of the car at 10:30am is approximately the time required to travel from the scene of the murder in Abbotsbury to Wycombe Street in Yagoona.

17. At 10:31am, there was another telephone call between the number used by Barakat and that subscribed to the applicant. In the period between 3:12am and 10:31am, calls to the number used by Barakat went to voicemail.

Applicant’s alleged role

18. On 6 August 2016, police made a request pursuant to s 14(1)(c) of LEPRA that the applicant disclose the identity of the driver of BU51NU on 12 July 2013. That section relevantly provides:

14 Power of police officer to request disclosure of driver or passenger identity

(1) A police officer who suspects on reasonable grounds that a vehicle is being, or was, or may have been used in or in connection with an indictable offence may make any one or more of the following requests:

…

(c) a request that any owner of the vehicle (who was or was not the driver or a passenger) disclose the identity of the driver of, and any passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the request was made or a direction was given under this Division to stop the vehicle.

Section 14 is found in Part 3 of LEPRA – Powers to require identity to be disclosed. By virtue of s 17(1) it is an offence punishable by a maximum penalty of 12 months’ imprisonment and/or a fine of $5,500 for the owner of a vehicle to fail to comply with a request under s 14(1)(c).

19. The applicant told police that he couldn’t remember who was driving his car on 12 July 2013 because many people drive the car. He said that he would provide a list to police by close of business on 14 August 2013. The applicant then met with Barakat and Elena Bakhos, a woman described in the Crown Case Statement as being Barakat’s “mistress,” at a hotel.

20. On 14 August 2013, the applicant provided police with a handwritten note nominating drivers of his car in the following terms:

“Josclyn Younes

Dany Younes - associates

Gorgkahn Gegobacken – associates done ???? in my car they know password

Mehmit onac (old worker)

(myself) haven’t driven since lost my licence”

21. The applicant did not name Barakat. In response to a question as to whether there were any other people who drove his car, the applicant replied, “Not that I know of. How did you have the car? Did you get the number plate?” Immediately after providing the note to police, the applicant met with Barakat in Yagoona.

22. Failing to name Barakat at the driver of the car on 12 July 2013 is the conduct giving rise to the charge of accessory after the fact to the offence of murder. The Crown alleges that, at the time of omitting Barakat’s name from the form of demand, the applicant was aware both of the murder and of Barakat’s involvement in it. The Crown case is that the omission was deliberate and done intentionally to assist Barakat by deflecting the attention of the police away from him.

Enmity between the deceased and the Barakat family

23. The Crown proposes to rely upon relationship evidence at trial to establish that there was significant hostility between the deceased and the Barakat family at the time of the shooting. In particular, there is evidence of a falling out between the deceased and the uncle of Barakat, Nader Barakat. The deceased and Nader Barakat had been close associates, having grown up together in the Marrickville area. There is police intelligence to the effect that the deceased was responsible for an unsuccessful drive-by shooting attempt on Nader Barakat and an associate and that the Barakat family offered a monetary reward for the killing of the deceased as revenge.

24. I interpolate that the relationship evidence goes to motive for the murder and is inadmissible against the applicant, although clearly in order for the Crown to establish its case against the applicant beyond reasonable doubt the elements of murder must be established as against Barakat beyond reasonable doubt.

Other evidence

25. On 29 August 2013, a person using the telephone service subscribed to the applicant’s wife called Bankstown Police Station and said, “The person youse are looking for, for the Ali Jammas shooting on the 12th of July at Abbotsford is Mahmoud Barakat.” The deceased was killed at Abbotsbury. On the limited material provided to me it is not clear whether the word “Abbotsford” is a typographical error.

26. At 6:34am on 14 September 2013, police lawfully intercepted a text message to the applicant from the applicant’s wife. The message reads:

“U know what I’m just gonna message macca n tell him u told the cops he was the one who killed the guy. U wanna play games with me u dog maybe he’ll just kill u now u scumbag.”

27. At 2:25pm on 14 September 2013, the following text message from the applicant’s wife to Barakat was intercepted:

“macca please keep away from david. i am about to have a baby and I don’t need this stress right now. please I’m asking like a human. I’m not being a dog and barking at you. you have kids. your wife can handle how you live but I can’t. if you have a brain you will stop hanging out with him otherwise I will take a different road. I’m not acting like anything so don’t be offended but I don’t want you in my life. Too much bad has come since you came and you know this so please walk away for my sanity and yours.”

28. On 10 October 2013, police intercepted a telephone call between Barakat and an associate in which Barakat makes reference to another named person not wanting to have anything to do with him in three months, “since that thing.” The Crown case is that this is a reference to the time that had elapsed since the murder of the deceased.

29. On 16 October 2013, police attended the home of Ms Bakhos. She denied knowledge of the murder. Immediately upon police leaving her house Ms Bakhos called Barakat and arranged an urgent meeting. Barakat, Ms Bakhos and the applicant met later that day at the Three Swallows Hotel in Yagoona.

Arrest of the applicant and Barakat

30. On 30 October 2013, Barakat was arrested at his house in Yagoona and charged with murder and other less serious offences. At that time he refused a police request under s 14 of LEPRA to identify the driver and passenger of BU51NU on 12 July 2013. The applicant was arrested on the same day and charged with being an accessory after the fact to murder, concealing a serious indictable offence and failing to disclose the driver or passenger of his vehicle.

31. A conversation between the applicant and Barakat in a cell of Bankstown Police Station was lawfully recorded pursuant to a surveillance device warrant. Barakat tells the applicant, among other things, “…keep the information for yourself. Lock it in your head, you know what I mean.” In relation to the applicant’s wife sending text messages to Barakat, Barakat says, “What the fuck does she know; she didn’t know for nothing.”

Defence case

32. As at the time of the hearing of this application neither the applicant nor Barakat had filed a defence response in accordance with s 141(1)(b) of the Criminal Procedure Act. With the exception of what was foreshadowed by the applicant at hearing and set out at [40] below, it is not known what either the applicant or Barakat will put in issue at trial beyond a bare denial of guilt.

Submissions of the parties

33. Both counsel for the applicant and the Crown filed written submissions and spoke to those submissions at the hearing of this application.

Submissions on behalf of the applicant

34. Mr Stanton of counsel on behalf of the applicant approached his submissions in terms of the general principles with respect to separate trials articulated by Hunt CJ at CL in R v Middis (unreported, NSWSC, 27 March 1991) at [10] and cited by Adams J in R v Pham [2004] NSWCCA 190 at [38] and by Gleeson CJ in R v Baartman (unreported, NSWCCA, 6 October 1994):

“Briefly, the relevant principles are that:

1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and

2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.”

35. Mr Stanton submitted that each of the three circumstances identified by Hunt CJ at CL is present in this case. The crux of the submissions advanced on behalf of the applicant in support of the application is that there is a great deal of evidence, much of which is prejudicial to the applicant, which is admissible against Barakat and inadmissible against the applicant having regard to the way in which the Crown puts its case. The applicant describes this in written submissions as “...the enormity, both in volume and significance, of the body of evidence available against the co-accused Barakat that wouldn’t be available against Younes.” In these circumstances, the jury would be distracted from proper consideration of the much weaker case against the applicant by the weight of the prejudicial evidence.

36. Mr Stanton submitted on behalf of the applicant that the “basis both in evidence and law” on which the prosecution case against the applicant is brought, as revealed by the Crown Case Statement, is critical. Importantly, Mr Stanton submitted, the Crown case is not put on the basis that the applicant was at any time party to a joint criminal enterprise with Barakat to kill the deceased. The liability of the applicant on the Crown case is accessorial only. The case against Barakat as a principal falls into a “separate and divisible compartment” from that against the applicant.

37. The “body of evidence” admissible against Barakat but inadmissible against the applicant includes all evidence prior to 6 June 2013 (being the date on which police first made a request of the applicant under s 14 of LEPRA), evidence of animosity between the deceased and the Barakat family and evidence of telephone conversations between Barakat and Ms Bakhos. The evidence of telephone conversations between the applicant and his wife are likewise inadmissible against Barakat.

38. Mr Stanton also submitted that, by the time the Crown leads any evidence specifically in relation to the applicant, the jury will inevitably have heard a deal of evidence about a feud between two families in Western Sydney that is irrelevant to the case against the applicant.

39. The effect of the evidence against Barakat being adduced in the applicant’s trial would, it was submitted, have the effect of strengthening the Crown case against the applicant immeasurably. No direction could cure the risk of positive injustice that would flow from a joint trial.

40. Mr Stanton also raised the issue of “duplicity” in his written submissions. He submitted that the Crown seeks to use the alleged commission of a summary offence as proof of the commission of a much more serious offence; that is, being an accessory after the fact to murder. Mr Stanton did not expand upon this submission at the hearing, but foreshadowed that a pre-trial issue would be whether the use of a provision that statutorily abrogates the right to silence as the “foundational basis” for proof of a serious offence has the effect of stymying the applicant’s right against self-incrimination. Mr Stanton submitted that the making of the demand under s 14 was a sham, as police were never going to accept an answer that did not include Barakat’s name. This submission, it was contended, is in narrow compass and the applicant should be permitted to ventilate it in a separate trial.

41. It was submitted that, were the applicant’s trial severed from that of Barakat, the issue of proving the murder could be dealt with by means of Agreed Facts.

Submissions on behalf of the Crown

42. The Crown accepted that the liability ascribed to the applicant in relation to the murder of the deceased is different from that of the principal; if there were any suggestion that the applicant were party to a conspiracy or joint criminal enterprise to kill the deceased he would have been charged with murder. There is no evidence that Barakat conveyed his alleged purpose for using the applicant’s car to the applicant when he borrowed it on 10 July 2013. It is on this basis that the accessorial liability of the applicant is alleged.

42. The Crown submitted that it is required to prove the principal offence from which the applicant’s accessorial liability flows. In response to the submission that there is a great deal of evidence that would only be led against Barakat, the Crown submitted that some of that evidence is necessary to prove the principal offence and would not be led for the purpose of proving that the applicant had any role in the commission of the murder. This category includes the CCTV evidence of the movements of BU51NU and the footage of the shooter, said to be either Barakat or the unknown male with him, emerging from the vehicle.

43. The Crown submitted at hearing that there is a relatively limited amount of telephone intercept evidence. Further, telephone intercept evidence that is prima facie admissible only against Barakat becomes admissible against both accused by reason of the terms in which the two men discuss it in later conversations. It was also submitted that the CCRs and RCCRs are relevant and thus admissible against both accused in the sense that they add to the Crown’s circumstantial case by demonstrating that there was telephone contact between the two, or indeed an unusual lack of telephone contact, at certain critical points in time.

44. The Crown also submitted that the brief of evidence is deceptive in its size; that is, a great deal of the material contained in it consists of voluminous CCRs and RCCRs. The relevant portions of this material will be condensed into a summary. In any event, the Crown submitted, the applicant’s position in respect of separate trials is weakened to the extent that he relies upon to the complexity and volume of the evidence against Barakat. A separate trial would require the duplication of much of the evidence, a consideration weighing in favour of a joint trial.

45. It was submitted by the Crown that in these circumstances it is in the interests of justice that the trial of the applicant and Barakat be a joint one.

Principles governing joint and separate trials

47. The court has a discretion to order that various accused that are joined in an indictment be tried separately. Section 21(2) of the Criminal Procedure Act relevantly provides:

21 Orders for amendment of indictment, separate trial and postponement of trial

…

(2) If of the opinion:

(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or

(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

Section 21(2)(b) is the applicable sub-section in this matter.

48. Where two or more accused are charged with committing an offence jointly, it is presumed that they should be tried jointly: R v Fernando [1999] NSWCCA 66 at [199]-[212]; Webb and Hay v R (1994) 181 CLR 41. Although the applicant and Barakat are not charged with committing the same offence, the applicant’s liability derives from that of the principal with whom he has been indicted.

49. Well-settled case law elucidates the circumstances in which courts will exercise their discretion under s 21(2)(b) to order a separate trial. I have extracted the relevant principles from the judgment of Hunt CJ at CL in R v Middis at [32] above. In R v Pham, Adams J clarified the meaning of the word “immeasurably” in limb 3 of R v Middis at [39] as follows:

“In ordinary speech, “immeasurably” usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant “significant, though incommensurable”. The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scaled, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to “positive injustice”. Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried.

Although both parties focused their submissions on the three matters identified Hunt CJ at CL in R v Middis, as Hodgson JA states in Madubuko v R [2011] NSWCCA 135 at [27], these are not the only matters relevant to the exercise of my discretion in this matter. A number of discretionary factors inform the exercise of the court’s discretion under s 21(2)(b). Some of these factors were articulated by Sheller JA (James J and Smart AJ agreeing) in Symms v R [2003] NSWCCA 77 at [66]-[76] as follows:

“The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts.”

50. The judgment of Sheller JA was cited with approval by Hodgson JA in Maubuko v R at [27].

Consideration

51. I do not propose to sever the trial of the applicant from that of Barakat for the following reasons.

52. First, I am not persuaded that the evidence in the case against the applicant could be described as significantly weaker than or different from that admissible against Barakat. This is because the applicant is indicted as an accessory after the fact to the murder allegedly committed by the principal offender Barakat. In order to prove its case against the applicant, the Crown must prove beyond reasonable doubt that Barakat murdered the deceased. It must also prove that, after the murder, the applicant did an act or acts in order to assist the principal escape from justice and that at the time of the act or acts the applicant knew that the principal had committed the murder. What is required to be proved in relation to the applicant is the same as what is required to be proved against Barakat, with two additional elements pertaining to the applicant’s acts, intention and knowledge.

53. Secondly, contrary to the submission of Mr Stanton, I am doubtful that it would be possible for the Crown and the applicant to reach consensus as to the contents of any Agreed Facts as to the murder of the deceased that could be placed before the jury if the applicant were to be granted a separate trial. If the trials were separated, presumably that of Barakat would proceed first. If, hypothetically, Barakat were convicted of the murder of the deceased, his certificate of conviction would not be admissible to prove the commission of the principal offence in the trial against the applicant: s 91 of the Evidence Act 1995 (NSW). It would not be expected that the applicant would agree that the first element (the fact of the murder) were satisfied, hence any Agreed Facts would necessarily contain all of the evidence that went to proving the murder at the first trial. The Crown should be permitted to put its best case forward to prove that element in circumstances where there would no doubt be some dispute as to what that evidence should be.

54. Thirdly, on the limited material available on this application, I accept the Crown’s submission that some of the evidence that is at first glance relevant only in the case against Barakat may also be relevant and thus prima facie admissible against the applicant.

55. Fourthly, in the event that certain evidence is inadmissible against the applicant, it seems to me that prejudice to him could adequately be dealt with by a clear and explicit direction to disregard it in relation to the applicant, or with directions as to its appropriate use. It must be presumed that jurors conscientiously follow the directions of law that are given to them by trial judges: Amos v R [2014] NSWCCA 302 at [19] per Leeming JA (Adams and Bellew JJ agreeing), citing Dupas v The Queen [2010] HCA 20; 241 CLR 237 at [26], Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 at [269]; Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [9]. The present case can be distinguished from cases in which, for example, the jury is asked to disregard prejudicial and inadmissible out-of-court statements by one accused about another such as in an ERISP: see R v Pham at [4]-[8] per Hulme J (as his Honour then was), cited by Leeming JA in Amos v R at [25].

56. Finally, it is in the public interest that the two accused be tried jointly. A joint trial will avoid unnecessary expenditure of resources, inconvenience to witnesses and the possibility of inconsistent verdicts.

57. I have reached the conclusion that this matter should proceed as a joint trial on the limited material before me described herein and in the absence of any disclosure as to what the respective defences of the applicant and Barakat will be at trial. This decision does not foreclose an application to me to reconsider this issue should material come to light that enables the applicant to demonstrate a change in circumstances: Saunders v R (1994) 72 A Crim R 347; R v Gibb & McKenzie [1983] 2 VR 155; (1982) 7 A Crim R 385 at 162. Any such application should be made prior to the jury being empanelled.

ORDER

58. The application that the trial of David Younes be severed from that of Mahmoud Barakat is refused.

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Amendments

18 January 2017 - Publication restriction note removed

Decision last updated: 18 January 2017