R v Semaan and Ors (Ruling 13)
[2016] VSC 668
•8 November 2016
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0127
S CR 2015 0124
S CR 2015 0125
| THE QUEEN |
| v |
| ALEXANDER SEMAAN |
| HANNA SEMAAN |
| MEGAN BELJULJI |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18, 20–22, 25–29 July, 1–5, 10–12, 15–19, 22–25, 29, 31 August, 1-2, 5-6 September, 24, 28 October, 4 November 2016 |
DATE OF RULING: | 8 November 2016 |
CASE MAY BE CITED AS: | R v Semaan & Ors (Ruling 13) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 668 |
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CRIMINAL LAW – No case submission on behalf of third accused in relation to Charge 3 – Attempting to pervert the court of justice – Whether crime scene had been altered – Whether accused knew or believed crime scene had been altered – Whether accused put police onto a false trail of evidence or participated in putting police onto a false trail of evidence – No case submission rejected (Ruling No 13).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams QC Mr N Hutton | Office of Public Prosecutions |
| For the Accused A Semaan | Mr M Sharpley | Valos Black & Associates |
| For the Accused H Semaan | Mr J Kelly | Matthew White & Associates |
| For the Accused M Beljulji | Mr D Cronin | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
Alex Semaan (Alex) is charged with murdering Michael Bekhazi on the night of 1 December 2014. Hanna Semaan (Hanna), Alex’s sister, and Megan Beuljulji (Megan), Alex’s girlfriend, are charged with attempting to pervert the course of justice in relation to the criminal proceedings against Alex.
In relation to the first charge (murder), Tony Kanaan (Kanaan), a relative of Alex and Hanna, claims that he saw Alex shoot Bekhazi in the head at close range in the backyard of Alex’s home. He made a police statement to that effect on the night of the shooting.
Alex denies shooting Bekhazi. He claims that an unknown armed intruder tried to rob him in the bungalow. Alex says he struggled with the intruder who fired off two shots in the bungalow before he (Alex) passed out. Alex claims the intruder must have shot and killed Bekhazi in the backyard as he was making his escape.
Charge 2 alleges that between 2 December 2014 and 22 January 2015, Hanna and Megan attempted to ‘have Kanaan give a false statement to police regarding the death of Michael Bekhazi’.
Charge 3 alleges that during the same time period, Megan[1] attempted to pervert the course of justice by ‘putting police onto a false trail of evidence by having them re-examine the crime scene associated with the death of Michael Bekhazi which had been altered’. The alleged alteration to the crime scene was the creation, by a person or persons unknown, of bullet damage in the bungalow to support Alex’s story about the armed intruder who fired off two shots in the bungalow.
[1]Originally Charge 3 was also brought against Hanna Semaan but I dismissed that charge after finding that she had no case to answer.
No Case Submission
On 16 August 2016, at the close of the prosecution case, counsel for Megan submitted that she had no case to answer in relation to Charge 3. In short, there were two limbs to counsel’s submission. First, it was submitted, in effect, that, even if the crime scene had been altered, no reasonable jury could be satisfied that Megan had participated in putting police onto a false trail of evidence.[2] Second, it was submitted that no reasonable jury could find that Megan knew that the crime scene had been altered. It was implicit in this second limb of the submission that, if it was not open to a reasonable jury to find that Megan knew the crime scene had been altered, a reasonable jury could not be satisfied that she intended to pervert the course of justice.[3] In oral submissions, counsel for Megan concentrated on the second limb of his submission.[4] On 16 August 2016, I gave a brief summary of my reasons for rejecting the no case submission.[5] I now give more detailed reasons for doing so.
[2]See written submissions on behalf of Ms Beljulji dated 16 August 2016, [2], [12].
[3]See written submissions on behalf of Ms Beljulji dated 16 August 2016 especially at [2], [3], [6], [7], [12].
[4]Trial Transcript, The Queen v Semaan & Ors (Supreme Court of Victoria, Beale J, 3, 4, 11 May 7, 18, 20–22, 25–29 July, 1–5, 10–12, 15–19, 22–25, 29, 31 August, 1-2, 5-6 September, 24, 28 October, 4 November 2016) (‘Transcript’) 1243-9.
[5]Transcript 1252
Legal Principles
The relevant legal principles regarding a no case submission were conveniently summarised by J Forrest J in R v Barnes[6] where he stated at [3] to [6]:
[6]R v Barnes [2008] VSC 66.
[3] The principles in relation to a no case submission at the conclusion of the Crown case were set out by the High Court in Doney v R[7]:
[7]Doney v R (1990) 171 CLR 207, 214-5. See also Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410, 417.
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
[4] It was also said in Doney[8]:
[8]Ibid 211.
Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded.
[5] In R v Cengiz[9] Ormiston JA stated:
[9]R v Cengiz [1998] 3 VR 720, 721.
If it can be shown that it is open to the jury to hold that all other hypotheses should be excluded as irrational or unreasonable, then it is important to allow the jury to apply their collective minds to the issue, because, as was said later in Doney, ‘… the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters’.
Harper AJA stated the relevant test as follows:
It sometimes happens in a circumstantial case that the evidence is not in dispute, but the parties disagree about the inference or inferences which should be drawn from the facts. In such cases, the judge must take the case away from the jury if, and only if, an inference consistent with innocence is not only open on the undisputed evidence but is also an inference which cannot be rationally excluded.[10] (My emphasis).
[10]Ibid 735.
[6] A similar approach was taken by the Court of Criminal Appeal of South Australia in Case Stated by Director of Public Prosecutions (No. 2 of 1993)[11]. King CJ said of the trial judge’s role:
He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.
He went on further to say:
I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence. (My emphasis)
[11]Case Stated by Director of Public Prosecutions (No 2 of 1993) [1993] SASC 4152; (1993) 70 A Crim R 323 at 327.
Alteration of the Crime Scene
Based on the evidence of Howard and Pringle, the two ballistics experts who examined the bungalow on 2 December 2014 and again on 23 December 2014, there was credible evidence that the crime scene had been altered sometime between those two dates. Counsel for Megan did not suggest otherwise. Both experts gave evidence that on 2 December 2014 they thoroughly searched the bungalow for bullet damage and found none. On 23 December 2014, as a result of a request from Alex’s lawyers to the Informant, they examined the bungalow again and found several bullet holes.
Participation
There was evidence from a Detective Sgt Steven Martin, who was present at the second search of the bungalow on 23 December 2014, that just prior to the search, Megan called Hanna, who was also present. Hanna handed the phone to Martin. Megan then instructed Martin on behalf of Alex that the police should look for bullet damage in the roof of the bungalow and in a painting. The police did so and found the bullet damage. It was open to a reasonable jury to find that Megan, by telling Martin where to look for bullet damage, put police onto a false trail of evidence or participated in putting police onto a false trail of evidence. In oral submissions, Megan’s counsel did not press the contrary view.
Megan’s State of Mind
I turn now to the second limb of counsel’s submissions – that concerned with Megan’s state of mind. In an earlier ruling where I discussed the elements of attempting to pervert the course of justice,[12] I stated in relation to Count 3:
The prosecution must prove that the accused meant for the police to find the false evidence, which the accused knew or believed to be false, with a view to that evidence being adduced as genuine in the proceedings against Alex.
[12]R v Semaan & Ors(Rulings 1 to 6) [2016] VSC 124R.
Defence Counsel’s Submissions
Defence counsel did not refer to ‘belief’, only knowledge, arguing that a reasonable jury could not find that Megan knew that the bullet damage was manufactured evidence. Counsel submitted that Megan was not present when the deceased was shot at about 9.30 pm on 1 December 2014 at 137 Donald Street. Hence, she did not know from personal observation who had shot the deceased and whether any shots had been fired by the offender in the bungalow. When she arrived at 137 Donald Street a short time after the shooting, she went straight into the premises in search of her boyfriend Alex. There was no evidence that she talked to anyone at 137 Donald Street who might have suggested to her that Alex was in fact the shooter.
Whilst inside the bungalow, Megan participated in two telephone calls involving the police negotiator Christopher Jacques during which she gave no indication of suspecting that Alex had shot the deceased. On the contrary, she indicated that Alex had been sleeping and did not know what had happened outside in the yard. There was no evidence to suggest that Alex told her that he had shot the deceased.
In the subsequent Arunta calls between Alex and Megan commencing on 4 December 2014, Alex consistently protested his innocence. As early as the second Arunta call on 8 December 2014, he told Megan that there was evidence in the bungalow that would prove that he wasn’t the shooter. On 8 December 2014, and subsequently, he indicated in the Arunta calls that there had been a robber who was responsible for the killing.
The prosecution did not allege that Megan manufactured or was involved in manufacturing the bullet damage in the bungalow. If the bullet damage was manufactured, that may have occurred prior to her returning to live at the bungalow as, after the shooting, she spent some time living with one of her parents. If she noticed the bullet damage on returning to live at the bungalow, that may have only reinforced in her mind what Alex was telling her.
Megan indicated in the Arunta Calls that she believed Alex. Accordingly, Megan’s counsel submitted that no reasonable jury could reject the possibility that she believed her boyfriend’s story about a robber who had shot the deceased and caused the bullet damage in the bungalow and that she did not know the bullet damage was false evidence.
Analysis
If a would be robber had entered the bungalow, and fired two shots in the course of a protracted struggle with Alex, one might have expected Alex to tell Megan about it when she joined him in the bungalow, even though he was substance affected. But there is no suggestion that he mentioned the robber to her, or anyone else on the night. Rather, he made out that he had been asleep.
There is no dispute that, within a day or so of the shooting, Megan must have known that Tony Kanaan had made a statement to police alleging that he had seen Alex shoot Bekhazi. Megan was in regular contact with Hanna. On the 2nd or 3rd December 2014 when Kanaan re-attended 137 Donald St, Hanna abused Kanaan about what he had told police and how it could put Alex in jail for a long time. Hanna had somehow got hold of a copy of Kanaan’s statement, which Megan handed in to Brunswick police station on 5 December 2014.[13] It was with this knowledge of Kanaan’s allegations that Megan participated in a series of Arunta calls with Alex.
[13]Transcript, 1193.
In the first Arunta Call on 4 December 2014 between Alex and Megan, Alex maintained that he had been asleep in the bungalow when the deceased was shot. There is no mention of any robber. During that first call, he does not sound substance affected or impaired in any way. He essentially advances the same version that he gave to the police negotiator Christopher Jacques on the night, a version which Megan also advanced when she spoke to Jacques on the night.
In the second Arunta Call, however, on 8 December 2014, Alex begins to advance the robber story. At no stage during this call or subsequent Arunta calls does Megan express any surprise at the radical change in Alex’s account of events on the night of 1 December 2014. She does not question Alex about him having previously said he was asleep. Nor does she question him about him having previously failed to mention a robber. Rather, she just goes along with what is obviously a self-serving account.
It was in my view open to the jury to conclude from these circumstances that Megan knew or believed that the robber story was a fiction. It was consequently open to the jury to conclude that Megan knew or believed she was putting police onto a false trail of evidence when on 23 December 2014 she told police where to look for the bullet damage allegedly made by the robber.
Accordingly, I rejected the no case submission.
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