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

1. 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”.

2. 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

3. 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.

4. 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 flight. Khaled retrieved the meat grinder which contained the bomb and took it to a family residence in Cleveland Street where it was disassembled and ultimately returned to Khaled’s garage at Lakemba. In his recorded interview, Khaled denied that Mahmoud, who had accompanied him and Amer to the airport on 15 July 2017, had any knowledge of the bomb or involvement in its being planted in Amer’s luggage. Khaled also denied that Mahmoud had any involvement in any of the other activities in which he had been involved at the behest of his brother, Tarek.

5. By contrast Mahmoud made few admissions in his recorded interview. He denied any involvement in the construction of the bomb or the plan to destroy the aircraft. His recorded interview is relied on by the Crown because it is said to contain lies upon which the Crown proposes to rely for proof of a consciousness of guilt.

6. It follows that the Crown case against Mahmoud is largely comprised of circumstantial evidence as well as some admissions and some lies in his recorded interviews; whereas the case against Khaled comprises circumstantial evidence together with his comprehensive admissions of his involvement.

Consideration

Relevant principles

7. The parties agreed that the following passage from the judgment of Whealy J in Regina (Commonwealth) v Baladjam (No 49) [2008] NSWSC 1468 at [14] adequately summarised the relevant principles for present purposes:

“(a) Where the Crown case is that the accused were parties to some form of joint enterprise, the starting point is that they should be tried jointly ( Webb v R (1994) 181 CLR 41 at 88-89 per Toohey J; Domican v R (1989) 43 A Crim R 24 at 26.

(b) The accused bears the onus of establishing the reasons for the making of an order granting a separate trial (R v Bikic (2000) 112 A Crim R 300). (c) To succeed, the applicant for a separate trial must demonstrate that there is a real risk that a positive injustice would be caused to him (or her) as a consequence of a joint trial (R v Ce (2005) NSWCCA 362 per Grove J at paras 4-5). In that case his Honour said:

‘It is well-established that principle and policy both indicate that persons charged with committing an offence jointly ought be tried together, even where accused persons seek to cast the blame upon each other: Webb & Anor v R . That rule is subject to a proviso that, if a joint trial would cause positive injustice to an accused, then a separate trial should be ordered (R v Oliver (1987) 57 ALR 543; R v Patsalis & Anor (1999) 107 A Crim R 432).’

(d) A separate trial is to be ordered where an applicant is able to demonstrate: 

(i) the evidence against the applicant is significantly weaker than, and different to, that which is admissible against another co-accused with whom he is to be tried; and

(ii) the evidence against the other accused contains material which is highly prejudicial to the applicant, although not admissible against him; and

(iii) there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material (R v Middis (SC NSW - 27 March 1991, Hunt J - unreported, at page 4); R v Baartman (CCA NSW - 6 October 1994 - unreported); R v Georgiou [1999] NSWCCA 125 at (5)). The applicant must show that positive injustice would be caused to him in a joint trial.

(e) In determining the issue as to whether a separate trial should be ordered, the Court must take into account not only the interests of the applicant but also the interests of the administration of justice. In fact, it is the interests of justice as a whole that are to be the governing factor. But, of course, among those interests are the interests of the accused. 

(f) One reason which has led to joint offences being tried together is the important policy reason related to the desirability that the same verdict and the same judgment should be returned against all those concerned in the same offences. That is to say, there is a need to avoid a situation, which might commonly arise where inconsistent verdicts might be given because of the holding of separate trials. It is not simply a question of saving time and money, although this is a consideration that may be taken into account (R v Merrett 19 A Crim R 363 per Slattery CJ at CL and Carruthers J; R v Fernando (1999) NSWCCA 66 at (195-226)).”

8. The only real point of difference between the parties was whether the principles referred to above are qualified by what Adams J said in R v Pham [2004] NSWCCA 190. I do not consider it to be necessary to decide this question since the real issue is whether the applicant (Mahmoud) has been able to demonstrate that there is a real risk that a positive injustice would be caused to him as a consequence of a joint trial.

The basis for the application

9. Mr Walmsley QC, who appears on behalf of Mahmoud, contended that if the two accused were tried jointly there would be a substantial risk that the jury will used Khaled’s admissions in the recorded interviews as the lens through which to view all the circumstantial evidence adduced against both accused. He submitted that this would inevitably occasion great prejudice to Mahmoud since many items of evidence would, in this way, appear heinous when each was capable of an innocent explanation. He argued, in effect, that the Crown would have an unwarranted and illegitimate advantage in its case against Mahmoud if he were tried jointly with Khaled. He submitted that the “intellectual gymnastics” which a jury would have to undergo would be so sophisticated that it could not reasonably be expected that they would be able to abide by a direction which required them to disregard Khaled’s recorded interviews when considering whether the Crown had made out its case against Mahmoud.

10. Mr Walmsley further submitted that the admissions made by Khaled comprised the only evidence in respect of certain key integers in the Crown case. He argued that although Mahmoud’s act of, for example, accompanying Amer and Khaled to Sydney airport on 15 July 2017, was capable of an entirely innocent explanation Khaled’s admissions as to his own purpose tended to cast Mahmoud’s involvement in a nefarious light. He argued that without Khaled’s admissions none of the circumstantial evidence would be capable of establishing Mahmoud’s participation in a conspiracy of the kind alleged.

11. In order to address these submissions it is necessary to provide some detail of the way in which the Crown proposes to prove its case against Mahmoud. It was accepted, at least for the purposes of the present application, that the only difference between the evidence adduced against each accused was the recorded interviews: that is, all of the evidence in the trial apart from Khaled’s recorded interviews would be led against Mahmoud; and all of the evidence in the trial, apart from Mahmoud’s recorded interviews would be led against Khaled.

The Crown case

The charge

12. The charge on the indictment in respect of each accused is as follows:

“Between about 20 January 2017 and about 29 July 2017 at Sydney in the State of New South Wales and elsewhere, did conspire with each other and divers others to do acts in preparation for, or planning a terrorist act (or acts).”

The elements of the offence

13. In substance, the Crown must prove the following against each accused and, relevantly, Mahmoud:

1. he, and at least one other person, entered into an agreement whereby they, or some other person, would do any act in preparation for or planning a terrorist act or acts, being an act or acts that:

1. would (inter alia) threaten, or cause serious injury or death to any person, or serious property damage; and

2. would be done with the intention of advancing a political, religious or ideological cause; and

3. would be done with the intention of:

1. coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

2. intimidating the public or a section of the public.

2. he or at least one other person intended that the offence would be committed pursuant to the agreement;

3. he intended to enter into the conspiratorial agreement alleged;

4. an overt act was committed pursuant to the agreement; and

5. that he knew of, or believed in, the existence of the facts that make up element (1) above.

The nature of a circumstantial case

14. As referred to above, the Crown case against Mahmoud, apart from the reliance on lies as alleged consciousness of guilt, is circumstantial. That does not make it weaker than a case based on direct evidence. Indeed, it may even be stronger where the evidence of primary fact relied upon derives, at least in part from communications made by the accused. However it was accepted that the Crown case against Khaled is significantly strengthened by the admissions Khaled made in his recorded interviews.

15. In a circumstantial case, the jury is required to consider the circumstantial evidence in its entirety, in accordance with the principles of The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48] (Gummow, Hayne and Crennan JJ) and The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [77] (French CJ, Kiefel, Bell, Keane and Gordon JJ). It is not necessary for the jury to determine whether any particular fact or circumstance is proved beyond reasonable doubt. Rather, the jury is obliged to consider whether the elements of the relevant offence have been proved beyond reasonable doubt, by reference to the totality of the evidence.

The evidence sought to be adduced in the Crown case against Mahmoud

16. The Crown submitted that the evidence summarised below would be adduced against Mahmoud whether his trial was heard separately from Khaled’s or whether it was heard jointly with Khaled’s trial.

The four “key events” in the Crown case

17. The Crown relied on the following four matters, which were described as “key events” in relation to the so-called “bomb plot” in its circumstantial case against both accused: the delivery of the parcel by DHL; the attendance at the airport by the two accused with their brother Amer; the disassembly of the meat grinder and the removal of the IED; and the delivery of the IED to Khaled’s garage. These will be addressed in turn.

The first key event: the delivery of the parcel

18. A parcel which emanated from Turkey and was addressed to the accuseds’ cousin arrived in Sydney on 17 April 2017. DHL attempted to deliver it but was unsuccessful. Mahmoud telephoned DHL on 18 April 2017. The parcel was delivered on 19 April 2017.

The second key event: the attendance at Sydney airport on 15 July 2017

19. The Crown case is that the two accused went to Sydney airport with their brother Amer, who flew out of Australia on the Etihad flight. When they took him to the airport, Amer had in his luggage the IED inside a meat grinder which was to go into the hold of the aircraft. The IED was set with a timer so that it would explode at some point mid-flight.

The third key event: the removal of the IED from the meat grinder

20. The Crown case is that after the meat grinder was removed, for whatever reason from Amer’s luggage, each of the accused then went to the extended family residence in Cleveland Street, Surry Hills, where the meat grinder was opened up and the IED was removed from it. When the IED had been removed, the components of the meat grinder were thrown into a rubbish bin and later retrieved by police in the execution of a search warrant.

The fourth key event: the delivery of the IED to Khaled’s garage at Lakemba

21. The IED was then taken back to Khaled’s garage at Lakemba and placed on a shelf where it, too, was found in the course of the execution of the search warrants which issued on 29 July 2017.

The communications, principally between the two accused, which occurred in the context of the four key events

22. The Crown proposes to rely on the evidence of communications between the two accused and others overseas to show that both of the accused were receiving instructions as to what they should do in relation to the four key events. Because the communications between the accused and their brother, Tarek, were conducted over Telegram, an app which facilitated transient messaging, the actual communications with Tarek are not in evidence, although Telegram communications between Khaled and the Controller are included in the “Chat Summaries” folder which was marked Exhibit B on the voir dire. However, the Crown will rely on communications between the two accused which refer to their communications from Tarek as being evidence from which the jury will be able to infer that each of the brothers communicated with Tarek about a subject which concerned them both. The Crown identified examples in the volume of “Chat Summaries” of the evidence it proposes to adduce for this purpose.

23. The Crown relied on communications between the accused about the delivery of the DHL package which contained a welder in which the IED was to be secreted. The Crown referred me to communications on and around 5-6 February 2017 which concerned how they could obtain the complete name and precise address of the cousin to whom the parcel was to be delivered so that the details could be communicated to Tarek. The Crown indicated that it relied on this evidence to show that the two accused were in contact with Tarek about the package that was being sent.

24. The Crown also relied on the circumstance that a photograph of the waybill for the DHL package which was to contain the welder and the IED was on the phone of each accused, thereby establishing that each accused was aware of the package and was involved in its delivery to their cousin.

25. The Crown proposes to adduce evidence that on 18 April 2017 it was Mahmoud who called DHL to make enquiries about the delivery of the package. When the operator asked him for a contact telephone number, Mahmoud gave him an email address for the purposes of communications concerning the package.

26. The Crown indicated that it proposes to rely on messages between the two accused at around 20 April 2017 about their going home to open up the welding machine. The Crown case will be that the accuseds’ purpose in opening the welding machine was to locate the IED. At around the time at which the communications indicated that they opened the machine, the two accused began communicating about the purchase of a timer, which, on the Crown case, would have permitted the detonation of the IED to be delayed until mid-flight. There were discussions between them about how and where to buy the timer and to which address it could be delivered.

27. The Crown proposes to rely on the evidence that Mahmoud purchased a timer using his wife’s eBay account which was then delivered to Khaled and, on the Crown case, to be fitted to the IED.

28. Another category of communications on which the Crown proposes to rely is the communications between the two accused which show that they were both aware of the item of luggage which Amer intended to take with him on the flight. The Crown identified a communication on 14 July 2017 in which Mahmoud asked whether Khaled was sending anything with Amer. The Crown will rely on the cryptic nature of the discussion between them and the fact that the particular item was not identified in support of the inference that they were referring to the IED. The Crown also identified a conversation between Mahmoud and his wife in which Mahmoud instructed his wife not to go out into the yard because “Haj” (Khaled) “opened the mince machine which is sharp and no one touch it please”. The Crown indicated that it proposed to rely on this conversation as evidence that Mahmoud knew that there was a dangerous item (the IED) inside the meat grinder and did not want his own children to be injured by it or to interfere with its operation by playing with it.

29. There was also a series of communications between Khaled and the Controller via Telegram on 14 July 2017, being the day before Amer was due to take the Etihad airline from Sydney airport. These communications related to the assembly of the IED and other devices, such as the timer, which would make it operational as a bomb.

30. The Crown also identified communications on 14 July 2017 between Mahmoud and Khaled about taking Amer to the airport on which the Crown proposes to rely in its case against Mahmoud to indicate that Mahmoud’s lies in his recorded interview amounted to a consciousness of guilt.

31. The Crown indicated that it proposes to rely on Mahmoud’s admission in a telephone call to his wife that he was at the airport, “waiting for them”.

32. The Crown also proposes to rely on conversations between the two accused on 16 July 2017, the day after the flight in which Khaled explained to the Controller that the “gift” had to be taken out of the luggage because it was too heavy and that it had been taken home and “secured”.

22. Further conversations between Khaled and the Controller indicated that Khaled offered to take the item overseas next time he went but the Controller said that he was not to do that because he needed to remain “here” (presumably Australia) to “carry out the work here” (on the Crown case, terrorist activities). Later, the Chat Summaries recorded that the two accused joked about who was going to take “the machine” overseas.

23. The Crown also relied on three-way chats between the two accused and Amer who, by that time, had arrived overseas. These discussions concerned a difficulty between Amer and his former landlord which gave rise to a fear on the part of both accused that Amer might have said something to the landlord which might have incriminated them.

Other material found on the phones of the two accused

35. The Crown proposes to rely on what it has described as “extremist ideology material” found on the phones and at the residences of each of the two accused.

Mahmoud’s recorded interview

36. The Crown identified, for the purposes of this application, the admissions on which it proposes to rely in its case against Mahmoud, as well as the statements made which it will contend comprise lies which amount to a consciousness of guilt.

Alleged admissions by Mahmoud

37. The admissions made by Mahmoud in his recorded interview on which the Crown proposes to rely include the following:

1. Mahmoud and Khaled both went to their cousin’s place on 19 April 2017 to collect the DHL package;

2. Mahmoud knew that there was some issue with Amer’s luggage as a result of which some items had to be removed;

3. Mahmoud was in relatively regular contact with Tarek, including by Telegram

Alleged lies by Mahmoud amounting to a consciousness of guilt

38. The Crown indicated that it proposes to rely on the following as amounting to a consciousness of guilt:

1. Mahmoud’s answers which suggested that his role in the collection of the parcel was spontaneous, as opposed to something which had been planned and of which he had been aware for some time;

2. Mahmoud’s statement that they had bought the welding machine on eBay or Gumtree, which is why he wanted to collect it, as opposed to the other evidence which indicates that the parcel emanated from Turkey, as both Khaled and Mahmoud knew from the waybill documents on their respective phones;

3. Mahmoud’s suggestion that he happened to be at a relative’s house on 15 July 2017 when Khaled arrived and said that he was going to the airport and asked Mahmoud to come with him, as opposed to an arrangement that the two accused had made that they would both take Amer to the airport with the IED inside the meat grinder in his luggage;

4. Mahmoud’s statement earlier in the first recorded interview that he had not spoken to Tarek for about two years followed by his admissions in the second interview that he had had more regular contact with him, amounting to contact every two weeks or so.

Forensic evidence

39. The Crown submitted that it also proposed to rely, in its case against Mahmoud, on forensic evidence to following effect. Both Mahmoud’s and Khaled’s fingerprints were found on the bag around the outside of the IED as well as an internal housing part of the meat grinder which was found in a bin with the instruction manual for the meat grinder. The Crown proposes to rely on this evidence to prove that Mahmoud was involved in putting the IED inside the meat grinder before it was taken to the airport and/or removing it when it was taken back from the airport.

Consideration

40. As referred to above, the starting point is that the two accused should be tried jointly as they have been charged with the same conspiracy charge. Mahmoud bears the onus of establishing that there is a real risk of some positive injustice would be caused to him as a consequence of a joint trial.

41. Although I accept that the Crown case against Khaled is stronger and more comprehensive by reason of Khaled’s detailed admissions, I am not satisfied (at this early stage before the trial has even begun) that there is a qualitative difference in the Crown’s capacity to prove each of the elements of the offence against each accused. While Khaled was remarkably forthcoming in his admissions, Mahmoud told what a jury might infer were crucial lies which have a significant potential to be used by the jury as a consciousness of guilt. Thus, it would be open to a jury to infer that each accused has apparently incriminated himself in a substantial way either by making truthful admissions (in the case of Khaled) or by lying (in the case of Mahmoud).

42. As set out above, there is a substantial body of evidence which is common to the Crown case against each accused, which derives from their communications, forensic evidence and other evidence. I am not persuaded that it is in the interests of the administration of justice that this evidence be adduced in separate trials. Nor am I persuaded that there is any prejudice to Mahmoud in being tried jointly that cannot be ameliorated by an appropriate direction. It is not an uncommon situation for two co-accused to be tried jointly in circumstances where one has given a comprehensive record of interview and the other has either chosen to remain silent or given much more limited responses in a recorded interview. I am not persuaded that the matters which Mr Walmsley has characterised as “innocuous” would be regarded as such by the jury when taken together, even in the absence of Khaled’s admissions in his recorded interviews. While Khaled gives further detail about other matters (such as a chemical weapon), the Crown’s circumstantial case about the bomb plot would appear to be relatively strong, at least as outlined by the Crown for the purposes of this application.

43. I am not persuaded by Mr Walmsley’s submission that Khaled’s interviews would be used by the jury to “join the dots” since the Crown’s circumstantial evidence gives rise to significant inferences without any regard being paid to Khaled’s interviews.

44. Mahmoud has not discharged the onus of proving that he ought to be tried separately.

Order

45. For the reasons given above, I made the following order on 14 March 2019:

1. Refuse the application for a separate trial made by Mahmoud Khayat.

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Decision last updated: 30 September 2019