R v Khayat (No 6)
[2019] NSWSC 1318
•16 April 2019
Supreme Court
New South Wales
Medium Neutral Citation: R v Khayat (No 6) [2019] NSWSC 1318 Hearing dates: 16 April 2019 Date of orders: 16 April 2019 Decision date: 16 April 2019 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: See paragraph [23]
Catchwords: CRIME – lies as consciousness of guilt – rulings made Legislation Cited: Criminal Code Act 1995 (Cth), ss 11.5, 101.6 Cases Cited: Edwards v The Queen (1991) 178 CLR 193; [1993] HCA 63 Category: Procedural and other rulings Parties: Regina
Khaled Mahmoud Khayat (Accused)
Mahmoud Khayat (Accused)Representation: Counsel:
Solicitors:
L Crowley QC/Y Shariff (Crown)
R C Pontello (Accused Khaled Khayat)
B Walmsley QC (Accused Mahmoud Khayat)
Commonwealth Director of Public Prosecutions (Crown)
Matouk Joyner Lawyers (Accused Khaled Khayat)
Birchgrove Legal (Accused Mahmoud Khayat)
File Number(s): 2017/236820; 2017/236835
Judgment
Introduction
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Mahmoud Khayat (the accused) and Khaled Khayat stand charged on indictment with conspiracy between 20 January 2017 and about 29 July 2017 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 have involved the use of an “improvised explosive device” (referred to as the bomb plot) or an “improvised chemical dispersal device” (referred to as the poisonous gas plot).
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The Crown proposed to rely on a number of statements alleged to have been made by the accused in his recorded interviews as indicating a consciousness of guilt.
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Mr Walmsley QC, who appeared on behalf of the accused, submitted that the statements were not capable of being construed as lies and that, therefore, the Crown ought not be permitted to rely on those statements for that purpose in its closing address.
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Further, Mr Walmsley relied on the following passage from Edwards v The Queen (1991) 178 CLR 193, at 212-213 (Deane, Dawson and Gaudron JJ); [1993] HCA 63 in opposition to the Crown’s proposal:
“Furthermore, the reluctance of the appellant to recall any more than he was compelled to do in cross-examination occurred in a situation in which the appellant had been in custody and did not wish to inculpate others who were in custody with him — to be a “dog” in prison terminology. That was not questioned by the prosecution as a motive for withholding the truth, indeed the prosecution suggested it. Whilst in many cases it must be a question for the jury whether a lie was told because the truth was perceived to be inconsistent with innocence or for some other reason, if it was established that there was a deliberate lie in this case about a material matter (and we do not think that it was), the innocent explanation for that lie was so plausible that the lie could not have been probative of guilt. Quite apart from our concerns about the existence of the lie and its materiality, this should have prevented the trial judge from concluding that the telling of the lie was capable of amounting to corroboration of the complainant's evidence.”
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In the course of argument, the Crown indicated that it did not press some statements earlier identified as amounting to lies. Ultimately, the Crown relied on the following:
that the accused had not spoken to Tarek at all for the past two years (Interview #1 Q/A 360-361)
that the accused did not actually know whether Khaled Khayat was in contact with Tarek (Interview #1 Q/A 367-368 and Interview #2 Q/A 536-543)
that the accused did not know Khaled Khayat had bought the welder machine until he came to his house on the day they collected it (Interview #1 Q/A 1072-1073 and Interview #2 Q/A 1520; 1659)
that the accused was “surprised” about Amer Khayat (one of the brothers of the accused and Khaled Khayat) and Khaled Khayat coming past Cleveland Street on 15 July 2017 (Interview #3 Q/A 353; 564)
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At the conclusion of argument, I ruled that (b), (c) and (d) were capable of amounting to lies and that the Crown was permitted to close to the jury on that basis but that (a) was not. What follows are the reasons for my rulings.
(a) The statement that the accused had not spoken to Tarek at all for the past two years
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The Crown argued that this statement was a lie because there was considerable evidence in the trial that the accused had had regular contact with Tarek in the past two years through the Telegram app. The issue to be resolved depended on the meaning of the word “spoken” in the answer given by the accused, on which the Crown relied. The uncontroverted evidence of Federal Agent May was that, while Telegram was an app that enabled users to send text and voice messages, it did not permit simultaneous conversations as such.
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In my view, the answer given by the accused Mahmoud in his recorded interview was literally true since it did not appear that he had spoken with his brother, Tarek, during that period, although he had undoubtedly communicated with him regularly. While the accused’s answer could be used by the jury on the question of his credibility since it is arguable that the answer to the question was misleading, I do not consider that it had the capacity to amount to a lie in the particular circumstances of the method of communication used by the accused to contact his brother. For these reasons, I refused to allow the Crown to submit to the jury that the statement that the accused had not spoken to Tarek at all for the past two years was a lie from which they could infer guilt.
(b) The statement that that the accused did not actually know whether Khaled Khayat was in contact with Tarek
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The accused was questioned about whether he knew whether Khaled and Amer Khayat were in contact with Tarek. He gave equivocal answers to the effect that he did not think so but then later indicated that, as Tarek was in touch with him (the accused), he guessed that Tarek would be in contact with his other brothers.
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These statements were said to amount to lies because at the time of the interviews, the Crown submitted that the accused actually knew that Khaled Khayat was in contact with Tarek and that therefore it was a lie to say that he only thought, or guessed, it to be the case.
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Mr Walmsley accepted that the evidence was sufficient to establish that the accused actually knew that Khaled Khayat was in touch with Tarek because the exchanges in the Chat Summaries (Ex AD) indicated as much. However, he submitted that, in the context of a lengthy interview, which was conducted in circumstances where the accused had to wear a white poncho and, for the most part, had bare feet, he should not be judged to have lied simply because he failed to acknowledge that he actually knew that Khaled Khayat was in touch with Tarek, as distinct from expressing an opinion that this was the case.
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I accept the Crown’s submission that the arguments raised by Mr Walmsley are matters which the jury could consider, having been given a direction as to the use of lies as a consciousness of guilt in accordance with what the High Court said in Edwards v The Queen about the content of such a direction. Mr Walmsley’s arguments are insufficient to persuade me that it would not be open to a rational jury to find that the accused’s statements were lies or that the statements were not material. One of the principal issues in the trial l is whether the accused was party to a conspiracy to which Tarek was accepted to have been a party. It may be that the stress of the interview, the accused’s personal discomfort and his non-native fluency in English, are sufficient to explain why the accused made the statement, knowing it to be untrue. However, these matters are not in a similar category to the lies considered by the High Court in Edwards v The Queen, where the accused was plainly reluctant to say anything which would implicate any other prisoner for fear of reprisals.
(c) The statement that the accused did not know Khaled Khayat had bought the welder machine until he came to his house on the day they collected it
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In his recorded interviews the accused said that he did not know that Khaled had bought the welder machine until he came to his house on the day they collected it. It was accepted for the purposes of the argument that the evidence established the following chronology.
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The accused had a photograph of a waybill on his telephone which indicated that a welder machine had been sent from Turkey to Abdul Karem Merhi (a cousin and brother-in-law of the accused) at his home in Wiley Park. It was reasonable to infer that he had that photograph since at least 17 April 2017 since he conducted searches of the “DHL” site that day, having been asked by Khaled Khayat to find out, from the tracking number on the waybill, the location of the package. The accused learned from the site that deliveries of the package had already been attempted. On 18 April 2017 the accused had telephoned DHL to find out where the package was and asked that it be re-delivered. On 19 April 2017 the accused and Khaled Khayat visited Abdul Karem Merhi who gave them the package which had been delivered to that address.
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There was also evidence from the accused that Khaled Khayat had told him earlier that he had bought a welder machine on eBay or Gumtree and that this was the item that was to be delivered to Abdul Karem Merhi.
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There was, accordingly, evidence from which the jury could find that, when the accused told the interviewing officers that he only found out that Khaled Khayat had bought a welder on the day they collected the package, being 19 April 2017, he was lying, since he knew at least from 17 April 2017 when he received the waybill and was told by Khaled Khayat that he had purchased a welder machine.
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Mr Walmsley submitted that the Crown’s approach was overly pedantic. He contended that it was relevant that the accused’s first language was Arabic and not English and that, even if the evidence showed that he knew that the welder machine was coming a couple of days before 19 April 2017, this was not something which was of sufficient clarity or importance to be used as a lie to show a consciousness of guilt.
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Once again, the matters raised by Mr Walmsley would appear to be matters for the jury when it comes to assess whether the statement was a lie and, if so, whether it was material and whether the accused lied through a consciousness of guilt of the offence with which he has been charged.
(d) The statement that the accused was “surprised” about Amer and Khaled Khayat coming past Cleveland Street on 15 July 2017
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The Crown sought to rely on the accused’s statement that he was surprised when Amer and Khaled Khayat came to Cleveland Street on 15 July 2017 as a lie evincing a consciousness of guilt. The Crown case was that both the accused and Khaled Khayat were parties to a conspiracy which relevantly involved doing acts in preparation for putting a bomb on an aircraft on which their brother Amer, was to fly to Lebanon via Abu Dhabi, leaving Sydney at about 3pm on 15 July 2017.
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The evidence relied on by the Crown to establish the falsity of the accused’s statement that he was surprised to see Khaled and Amer on 15 July 2017 when they arrived at his in-laws’ property at Cleveland Street, Surry Hills, included text messages sent between the accused and Khaled in which it was arranged that Khaled would bring Amer to the Cleveland Street property on his way to the airport to see his aunt who had recently had heart surgery.
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Mr Walmsley submitted that whether or not that statement was found to be false depended on the view taken of time. He contended that the accused was surprised when he learned, earlier on the morning of 15 July 2017, that Khaled and Amer were coming to Cleveland Street, but that, when they actually arrived, he was not surprised because he was expecting it. Mr Walmsley submitted that the Crown’s interpretation was pedantic and inapposite in circumstances where the speaker, the accused, was not a native English speaker.
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Mr Walmsley’s submission may well have force with a jury but it seems to me to be a matter, not of the capacity of the statement to amount to a lie, but rather whether the tribunal of fact (the jury) ought be satisfied of the matters prescribed in Edwards v The Queen in respect of this statement. This latter question is one for the jury. Further, I am not persuaded that there is such a compelling explanation for the lie (if it be one) that I ought prevent the Crown from contending that the statement be used as evincing a consciousness of guilt.
Ruling
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After hearing argument on 16 April 2019 I made the following rulings:
Permit the Crown to submit in its closing address that statements (b), (c) and (d) amount to a consciousness of guilt.
Rule that the Crown is not permitted to submit in its closing address that statement (a) amounts to a consciousness of guilt.
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Decision last updated: 30 September 2019
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