R v Khayat (No 4) - [2019] NSWSC 1317

Supreme Court

New South Wales

Medium Neutral Citation: R v Khayat (No 4) [2019] NSWSC 1317
Hearing dates: 14 March 2019
Date of orders: 14 March 2019
Decision date: 14 March 2019
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
Application for separate trial refused.

Catchwords: CRIMINAL PROCEDURE – application for separate trial – applicable test – alleged prejudice arising from possibility that jury will view circumstantial evidence through lens of one accused’s comprehensive admissions in recorded interviews – prejudice can be overcome by orthodox directions – application refused
Legislation Cited: Criminal Code Act 1995 (Cth), ss 11.5, 101.6
Cases Cited: Regina (Commonwealth) v Baladjam (No 49) [2008] NSWSC 1468
R v Pham [2004] NSWCCA 190
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
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) between 20 January 2017 and about 29 July 2017. The relevant acts are alleged to involve the use of an “improvised explosive device” or an “improvised chemical dispersal device”.
Mahmoud seeks an order that the trial of the charge against him be heard separately from the trial of the charge against Khaled. On 14 March 2019 I refused his application. What follows are my reasons.

Factual background

Khaled and Mahmoud were each arrested on 29 July 2017. Each participated in recorded interviews with police officers who were members of the Joint Counter Terrorism Team.
Khaled made comprehensive admissions as to his involvement in the receipt of an improvised explosive device (IED) from Turkey and the construction of a bomb from various components which included the IED. He admitted that he took the bomb to Sydney International Airport on 15 July 2017, having put it inside a meat grinder and planted it the check-in luggage of his brother, Amer, who was to fly on an Etihad Airlines flight to Lebanon. He also admitted that he had been involved in producing chemical weapons in accordance with instructions provided to him by his brother, Tarek, and another man in Syria (referred to as the Controller). Tarek was an ISIS operative and intended that the bomb be used for terrorist purposes. According to Khaled’s admissions, it was intended that the bomb explode while the aircraft was in the air over the sea. The plan was not implemented when, for whatever reason, the meat grinder which contained the bomb was removed from Amer’s luggage before he boarded the…

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 4)

Details

AGLC: R v Khayat (No 4) [2019] NSWSC 1317
Case: [2019] NSWSC 1317
Decision Date: 14 March 2019

CaseChat Overview and Summary

In the case of R v Khayat (No 4), the defendant was facing criminal proceedings along with co-accused individuals. The nature of the dispute centred around the application for a separate trial, given the concern that the jury might be prejudiced by the defendant's admissions in recorded interviews. The application was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the potential prejudice arising from the defendant's admissions could be mitigated through appropriate directions to the jury.

The court considered whether the potential prejudice could be effectively addressed through the application of orthodox directions, which would instruct the jury to consider the evidence independently and not to be swayed by the defendant's admissions. It was determined that the risk of prejudice could indeed be mitigated by such directions, which were deemed sufficient to ensure a fair trial for all defendants. Consequently, the court concluded that there was no compelling reason to grant a separate trial for the defendant. The application was therefore refused, and the case proceeded with the original trial arrangement.

The court's reasoning was based on the understanding that the potential prejudice could be sufficiently managed through the jury being properly directed. This approach aligned with the principle that the integrity of the trial process could be maintained through appropriate judicial measures, without necessitating a separate trial. The outcome underscored the court's confidence in the ability of orthodox directions to protect the fairness of the trial and ensure that all defendants received a just hearing.

Orders