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District Court 19 April 2007

Regina v Saleh Khodr

[2007] NSWDC 329

Assault & violencePublic order & justice offences
CRIMINAL LAW APPLICATION FOR SEPARATE TRIAL DANGER OF UNFAIR PREJUDICE POSITIVE INJUSTICE EVIDENCE AGAINST CO ACCUSED HIGHLY PREJUDICIAL TO APPLICANT

Citation: Regina v Saleh Khodr [2007] NSWDC 329
Court: District Court of New South Wales
Date: 19 April 2007
Judge(s): Cogswell SC DCJ

Background

The accused Saleh Khodr and his co-accused Amir El Mostafa faced joint charges arising from a riot in Auburn on the night of 30 January 2005. The Crown alleged that a group of Sunni Muslims attacked a group of Shi'ite Muslims in the street, and that both accused participated in that attack as part of a joint criminal enterprise. The charges included riot (with affray as an alternative) and three assault charges, including one count of maliciously inflicting grievous bodily harm.

The cases against the two accused were substantially different in strength and character. Only one witness, Mr Al Shemmari, identified Khodr, claiming Khodr pointed him out as a target before he was assaulted. By contrast, six witnesses identified El Mostafa, and additional evidence existed linking El Mostafa to a pre-riot altercation earlier that day and to a polling booth demonstration connected to the Iraqi elections, both of which carried political and religious overtones.

Khodr applied for a separate trial on the basis that evidence against El Mostafa, particularly the pre-riot fracas and polling booth demonstration, was so prejudicial that a joint trial would cause him positive injustice.

  • Whether the evidence against co-accused El Mostafa, including evidence of political and religious motivation and a pre-riot altercation, was sufficiently prejudicial to Khodr to require a separate trial
  • Whether jury directions could adequately address any risk of unfair prejudice arising from a joint trial
  • Whether the "positive injustice" threshold required by the principles governing separate trial applications was met

Decision

The court applied the principles governing separate trial applications as set out by Hunt J in Regina v Middis and approved by the Court of Criminal Appeal in Regina v Baartman and Regina v Ngoc Pham. Those principles require more than mere prejudice: the applicant must demonstrate a risk of positive injustice. The court accepted that the evidence of the pre-riot fracas and polling booth demonstration was potentially prejudicial to Khodr, given its political and religious flavour and its capacity to colour how the jury viewed his participation.

However, the court noted that the prejudicial evidence was not, on its face, incriminating of Khodr at all. Khodr was not alleged to have been present at the pre-riot fracas or the demonstration, and his record of interview contained no suggestion of involvement in either event. The content of the evidence itself made it obvious that it bore on El Mostafa's motivation, not Khodr's conduct.

The court concluded that clear and emphatic directions, given both at the time the evidence was admitted and during the summing-up, would sufficiently reduce any risk of prejudice. The justice system operates on the assumption that juries will follow such instructions. Weighing that against the desirability of a joint trial as affirmed by the High Court in Webb and Hay v The Queen, the court found the threshold of positive injustice was not reached.

The application for a separate trial was accordingly rejected.

Orders Made

  • The application for a separate trial by the accused Saleh Khodr was refused.

Key Takeaways

  • A separate trial application requires the applicant to demonstrate a risk of positive injustice, not merely unfair prejudice. General prejudice arising from a joint trial is insufficient to meet the threshold.
  • Where evidence against one accused is plainly not incriminating of a co-accused on its face, that fact weighs against granting a separate trial.
  • Jury directions, given at the time prejudicial evidence is admitted and repeated during the summing-up, are a recognised mechanism for managing unfair prejudice in joint trials. The District Court confirmed that the justice system proceeds on the assumption that juries will adhere to such instructions.
  • The High Court's recognition in Webb and Hay v The Queen of the public interest in joint trials carries significant weight when courts assess whether to exercise a discretion to sever.
  • Disparity between the strength of the Crown case against co-accused, including differences in the number of identification witnesses and the existence of additional motive evidence against one accused only, does not automatically justify separate trials.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93B (riot) and 93C (affray)

Cases:
- Regina v Middis, unreported, NSWSC, 27 March 1991
- Regina v Baartman, unreported, NSWCCA, 6 October 1994
- Regina v Ngoc Pham [2004] NSWCCA 190
- Gilbert v The Queen (2000) 201 CLR 414
- Webb and Hay v The Queen (1993) 181 CLR 41