R v Khayat (No 9)

[2019] NSWSC 1319

Supreme Court

New South Wales

Medium Neutral Citation:	R v Khayat (No 9) [2019] NSWSC 1319
Hearing dates:	3 May 2019
Decision date:	03 May 2019
Before:	Adamson J
Decision:	Crown’s application for leave to re-open granted.
Catchwords:	CRIMINAL TRIAL – application for leave to re-open after jury has commenced deliberations – purpose of additional evidence to correct errors in documentary evidence pertinent to question asked by jury – leave not opposed – leave granted and direction given
Cases Cited:	Dryburgh v The Queen (1961) 105 CLR 532; [1961] HCA 54 R v Bodi [1969] VR 36
Category:	Procedural and other rulings
Parties:	Regina Khaled 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 Khayat) Birchgrove Legal (Accused Mahmoud Khayat)
File Number(s):	2017/236820; 2017/236835

Judgment – EX TEMPORE

Introduction

1. The Crown has applied for leave to re-open its case to adduce further evidence although the jury has already commenced its deliberations. I have decided to grant leave for the following reasons.

The facts

2. Yesterday afternoon the jury sent me a note (marked MFI 41) in which it asked questions about the times and dates of items 307, 308 and 309 of exhibit AA (the summary of Khaled Khayat’s devices) as well as associated entries in exhibits AD (the Chat Summary) and Y (the summary of Mahmoud Khayat’s devices). Having consulted with counsel, I brought the jury back and answered those questions in accordance with the material on those exhibits in an attempt to clarify the jury's understanding of the evidence.

3. This morning, I received a note from the Crown who had consulted with Mr Walmsley QC, counsel for Mahmoud Khayat, and copied an email to Mr Pontello, counsel for Khaled Khayat (who has been excused as the jury has already returned a verdict of guilty in respect of Khaled Khayat), to the effect that the Crown was concerned about the accuracy of entries in exhibit AA which were the subject of the jury’s question.

4. Overnight, the Crown's legal representatives, both counsel and solicitors, have examined the original documents, known as UFED, in the prosecution brief which were used to produce exhibit AA. These inquiries revealed inaccuracies in the entries for 307, 308, 309 and 310. The Crown sought leave to reopen the Crown case in order to rectify these inaccuracies. Mr Walmsley did not oppose leave being granted as long as appropriate directions were given to the jury. He also indicated that he would agree with the facts proposed by the Crown as to the true times and dates relevant to items 307, 308, 309 and 310.

The relevant principles

5. It is accordingly necessary to outline the principles relevant to the question whether a case can be re-opened after the jury has been sent out to deliberate.

6. Mr Crown directed my attention to a number of authorities and, in particular, the Victorian Full Court’s summary of principles in R v Bodi [1969] VR 36 at 39-40. The Court considered whether a trial judge had a power to allow further evidence to be adduced notwithstanding that the evidence had closed and the jury had commenced the deliberations in circumstances where a jury question had served to identify some inaccuracy in the evidence already adduced. The Court compared the position in England, which is that there is an inflexible rule that under no circumstances should further evidence be allowed after the evidence has closed, with the position in Australia, which is that there is a discretion vested in the trial judge to allow the calling of further evidence and no inflexible rule forbidding that course to be taken.

7. At 39, the Court referred to the statement by the High Court in Dryburgh v The Queen (1961) 105 CLR 532 at 535; [1961] HCA 54, as follows:

"[I]t is necessarily a discretion to be exercised with such jealous concern for the obvious possibility of injustice that only in rare cases can it be right to admit the belated evidence".

8. The Court in R v Bodi also addressed the situation where the defence either requests the admission of the evidence or consents to the admission of the evidence. The Court in R v Bodi emphasised that it was the duty of the trial judge after such evidence is given to ensure by appropriate directions to the jury that it carries no more weight than it properly should. Their Honours said:

“This duty is more compelling when it appears from the nature of the further evidence sought that the jury in seeking the further evidence was probably attributing undue significance to the point raised."

Consideration

9. As I have said, it is the Crown who requests the admission of the further evidence. Although Mr Walmsley does not consent to the admission of the further evidence, he has fairly indicated that he does not oppose its admission. I have heard from counsel as to the appropriate direction which I should give after the evidence is admitted and provided to the jury. I propose to indicate to the jury that these corrections are being made in a very lengthy document as a result of the question that they have asked and that I am merely fixing up a few matters in that document and do not wish to place any particular significance on the entries or the corrections.

10. I also propose, as Mr Walmsley has requested, to remind the jury that there is no direct evidence associating Mahmoud Khayat in any way with item 308, and that the evidence of Khaled Khayat was that it was a photo which he took and sent to his brother Tarek. I consider that these directions will be sufficient to comply with my obligations as outlined in R v Bodi.

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Decision last updated: 30 September 2019