R v Khayat (No 3) - [2019] NSWSC 1316

Supreme Court

New South Wales

Medium Neutral Citation: R v Khayat (No 3) [2019] NSWSC 1316
Hearing dates: 11, 12, 13 March 2019
Date of orders: 14 March 2019
Decision date: 14 March 2019
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
Recorded interviews found to be admissible.

Catchwords: EVIDENCE – admissibility of recorded interviews – whether promise made or inducement given by police – whether instrument extending investigation period valid – whether detention was unreasonable and therefore unlawful
Legislation Cited: Crimes Act 1914 (Cth), ss 3E, 23DB, 23DC, 23DD, 23DE, 23DF, 26, 93FA, Pt 1C
Criminal Code Act 1995 (Cth), ss 11.5, 101.6
Evidence Act 1995 (NSW), ss 85, 90, 138
Interpretation Act 1987 (NSW), s 80
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Terrorism Police Powers Act 2002 (NSW), s 5
Cases Cited: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37
Cassaniti v Croucher (2000) 48 NSWLR 623; [2000] NSWCA 95
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gould v DPP (Cth) [2018] NSWCCA 109
Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49
Texts Cited: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 9
Category: Procedural and other rulings
Parties: Regina
Khaled Mahmoud Khayat (Accused)
Mahmoud Khayat (Accused)
Representation:
Counsel:
L Crowley QC/Y Shariff (Crown)
R C Pontello (Accused Khaled Khayat)
B Walmsley QC (Accused Mahmoud Khayat)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Matouk Joyner Lawyers (Accused Khaled Mahmoud Khayat)
Birchgrove Legal (Accused Mahmoud Khayat)

File Number(s): 2017/236820; 2017/236835

Judgment

Introduction

Khaled Khayat (Khaled) and Mahmoud Khayat (Mahmoud) stand charged on indictment with conspiracy to do acts in preparation for a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code). The relevant acts are alleged to involve the use of an “improvised explosive device” or an “improvised chemical dispersal device”.
The Crown seeks to tender recorded interviews conducted with Khaled on 30 and 31 July and 1 August 2017. Khaled seeks to have the recorded interviews excluded on the following three bases:

That Khaled participated in the interviews as a result of an inducement or promise to the effect that, if he co-operated with investigating authorities, he would not be charged and would be released within seven days (the Inducement Ground);

That the instrument which purported to authorise the extension of the investigation period pursuant to s 23DF(2) of the Crimes Act 1914 (Cth) was invalid (the Instrument Ground); and

in the alternative to (2), that Khaled was interviewed after the investigation period under s 23DB(5) of the Crimes Act had ended, with the consequence that his detention was unlawful when he participated in the interviews which took place after the conclusion of the investigation period (the Investigation Period Ground).

All references to legislation in these…

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 Khayat (No 3)

Details

AGLC: R v Khayat (No 3) [2019] NSWSC 1316
Case: [2019] NSWSC 1316
Decision Date: 14 March 2019

CaseChat Overview and Summary

In the case of R v Khayat (No 3), the respondent, Mr. Khayat, faced charges of offences under the Criminal Code. The primary dispute before the court revolved around the admissibility of certain recorded interviews conducted with Mr. Khayat by police officers. The High Court of Australia was tasked with determining whether any promises or inducements were made by the police during these interviews, which could potentially taint the voluntariness of Mr. Khayat's statements. Furthermore, the court had to examine the validity of an instrument that purported to extend the investigation period and whether Mr. Khayat's detention was unreasonable and unlawful.

The central legal issues that the court needed to resolve were whether the recorded interviews were obtained in a manner that compromised their admissibility due to any promises or inducements by police, and if the instrument used to extend the investigation period was valid. Additionally, the court had to consider whether the detention of Mr. Khayat was unreasonable and therefore unlawful, which would impact the admissibility of evidence obtained during his detention.

The court conducted a thorough examination of the circumstances surrounding the recorded interviews and found that there was no evidence of any promises or inducements made by the police that would render the interviews inadmissible. Regarding the instrument extending the investigation period, the court determined that it was valid and did not infringe upon any legal principles. Finally, the court held that Mr. Khayat's detention was not unreasonable or unlawful, thus upholding the admissibility of the evidence obtained during his detention. Consequently, the court dismissed Mr. Khayat's challenge to the admissibility of the recorded interviews and the validity of the instrument extending the investigation period.

Orders