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

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

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.
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.
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

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.
Mr Crown directed my attention to a number of authorities and, in particular, the Victorian…

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 9)

Details

AGLC: R v Khayat (No 9) [2019] NSWSC 1319
Case: [2019] NSWSC 1319
Decision Date: 03 May 2019

CaseChat Overview and Summary

In the case of R v Khayat (No 9), the applicant, Khayat, applied for leave to reopen his case after the jury had commenced its deliberations. The case involved a criminal trial in which the applicant was charged with offences under the Customs Act 1901. Khayat sought to introduce additional evidence to correct errors in documentary evidence which the jury had asked about during their deliberations. The prosecution did not oppose the application for leave to reopen the case.

The central legal issue before the court was whether it was appropriate to grant leave for the case to be reopened to allow the introduction of additional evidence when the jury had already commenced its deliberations, and whether the purpose of the additional evidence was to correct errors in documentary evidence pertinent to the question asked by the jury. The court considered the principles of procedural fairness and the importance of ensuring that the jury has all relevant information before reaching its verdict.

The court found that, while the general rule is that a case cannot be reopened once the jury has commenced deliberations, there are exceptions to this rule, particularly when the evidence is intended to correct errors in documentary evidence which are pertinent to the jury's deliberations. The court held that in this instance, the purpose of the additional evidence was to correct errors in documentary evidence which were relevant to the jury's question, and that it was in the interests of justice to grant leave to reopen the case. The court granted leave and directed that the additional evidence be provided to the jury.

Orders