R v Jaghbir (No 3) - [2020] NSWSC 1383

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Jaghbir (No 3) [2020] NSWSC 1383
Hearing dates: 7 – 11 September 2020; 15 – 18 September 2020;
21 - 22 September 2020
Date of orders: 12 October 2020
Decision date: 12 October 2020
Jurisdiction: Common Law
Before: Davies J
Decision:
The accused Ahmed Jaghbir is guilty of procuring, aiding and counselling unknown persons to murder Kemel Barakat

Catchwords:
CRIME - accessory before the fact to murder - trial by judge alone - circumstantial evidence case - where deceased was shot whilst he was asleep in his unit in a security building - where assailants entered the unit by unlocking the front door with a key in their possession - where unsuccessful attempt made by assailants to gain access to deceased’s unit two days prior - where accused asked to repair the front door of the deceased’s unit one week before the killing - whether the accused provided a key and/or information to enable access to the unit where the deceased resided - where accused the only person who could have provided a duplicate key - where accused made admission indicating that he had some involvement in setting up the entry of the assailants - evidence of accused’s knowledge of unsuccessful attempt two days prior - relevance of motive - where no reasonable explanation consistent with the innocence of the accused - accused found guilty

Legislation Cited:
Criminal Procedure Act 1986 (NSW) s 133
Evidence Act 1995 (NSW) ss 38, 165

Cases Cited:
Briginshaw v Briginshaw (1938) 60 CLR 336
Burrell v R [2009] NSWCCA 163
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Davidson v R [2009] NSWCCA 150
Plomp v the Queen (1963) 110 CLR 234
R v Jaghbir (No 2) [2020] NSWSC 955
R v Merritt [1999] NSWCCA 29
Shepherd v The Queen (1991) 170 CLR 573
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Texts Cited:
Nil

Category: Principal judgment
Parties: Crown
Ahmed Jaghbir (Accused)
Representation:
Counsel:
C Taylor (Crown)
G James QC & E James (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Abbas Jacobs Lawyers (Accused)

File Number(s): 2017/337859
Publication restriction: Nil

JUDGMENT

Ahmed Jaghbir was arraigned before me on 7 September 2020 and entered a plea of not guilty to the following charge:

Whereas on the 10th day of March 2017, at Mortlake in the State of New South Wales, unknown persons did commit a serious indictable offence, namely murder Kemel Barakat, you are a charged by that name for that between the 2nd and 10th day of March 2017 at Sydney, in the State of New South Wales, before the said serious indictable offence was committed, you did procure, aid and counsel the said persons unknown to commit the said serious indictable offence.

The trial was conducted without a jury. The accused had made application for a judge alone trial by a notice of motion filed on 2 March 2020. That notice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jaghbir (No 3)

Details

AGLC: R v Jaghbir (No 3) [2020] NSWSC 1383
Case: [2020] NSWSC 1383
Decision Date: 12 October 2020

CaseChat Overview and Summary

The case before the court was an appeal against a conviction for being an accessory before the fact to a murder. The deceased was shot while he was asleep in his unit within a security building. The assailants had entered the unit by unlocking the front door with a key in their possession. An unsuccessful attempt to gain access to the deceased’s unit had been made by the assailants two days prior. The accused had been asked to repair the front door of the deceased’s unit one week before the killing. The court had to determine whether the accused provided a key and/or information to enable access to the unit where the deceased resided. The accused was the only person who could have provided a duplicate key, and he made an admission indicating that he had some involvement in setting up the entry of the assailants. The evidence also showed that the accused had knowledge of the unsuccessful attempt two days prior. The relevance of motive was also considered, and it was found that there was no reasonable explanation consistent with the innocence of the accused.

The court had to consider whether the circumstantial evidence was sufficient to prove the accused’s guilt beyond reasonable doubt. The court found that the evidence of the accused’s knowledge of the unsuccessful attempt two days prior, his admission of involvement in setting up the entry of the assailants, and his ability to provide a duplicate key were all strong indicators of his guilt. The court also considered the relevance of motive and found that there was no reasonable explanation consistent with the innocence of the accused. The court found that the circumstantial evidence was sufficient to prove the accused’s guilt beyond reasonable doubt.

The court found the accused guilty of being an accessory before the fact to the murder. The court found that the evidence of the accused’s knowledge of the unsuccessful attempt two days prior, his admission of involvement in setting up the entry of the assailants, and his ability to provide a duplicate key were all strong indicators of his guilt. The court also considered the relevance of motive and found that there was no reasonable explanation consistent with the innocence of the accused. The court found that the circumstantial evidence was sufficient to prove the accused’s guilt beyond reasonable doubt. The court ordered that the accused be sentenced accordingly.

Orders