Citation: R v Barakat; R v Younes (No 1) [2016] NSWSC 1152
Court: Supreme Court of New South Wales
Date: 19 August 2016
Judge(s): N Adams J
Background
The accused Barakat was charged with murdering a man shot six times in his driveway at Abbotsbury on 12 July 2013. The Crown alleged that Barakat used a distinctive car belonging to his co-accused, drove it to the scene with an unknown male, and returned it approximately 30 minutes after the shooting.
The co-accused Younes was charged as an accessory after the fact to that murder under s 349(1) of the Crimes Act 1900 (NSW). The Crown's case against him rested on his conduct in August 2013, when police served him with a formal demand under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) requiring him to identify who had driven and occupied his car on the day of the murder. Younes provided a handwritten list of names but did not include Barakat. The Crown alleged this omission was deliberate and designed to shield Barakat from detection.
Both accused were listed for joint trial in September 2016. Younes applied by Notice of Motion to have his trial severed from Barakat's, arguing that much of the evidence admissible against Barakat for murder would be inadmissible against him and would unfairly prejudice his case before the jury.
Legal Issues
- Whether the trial of Younes (the alleged accessory) should be severed from that of Barakat (the alleged principal) under s 21(2) of the Criminal Procedure Act 1986 (NSW)
- Whether evidence admissible against Barakat, particularly relationship and circumstantial evidence about the murder, would be inadmissible against Younes and so prejudicial as to warrant separate trials
- Whether jury directions could adequately address any prejudice arising from a joint trial
Decision
Adams J refused the application for severance. His Honour noted that the accused bore the onus of demonstrating that a joint trial would be unfair and that this onus was a heavy one. The court observed that joint trials are the norm where charges arise from the same criminal enterprise, and that severance is an exceptional remedy.
The court accepted that some evidence adduced against Barakat on the murder charge would not be directly admissible against Younes on the accessory charge. However, his Honour found that the accessory charge necessarily depended on the jury first being satisfied that the principal offence of murder occurred. Trying the two separately would risk inconsistent verdicts and would require much of the same evidence to be led twice.
Adams J also considered that some of the evidence that appeared at first glance to relate only to Barakat might in fact be admissible against Younes as well. Where evidence was genuinely inadmissible against Younes, the court held that clear and explicit jury directions to disregard that evidence in relation to him would be sufficient to address any prejudice. Citing established authority from both the High Court and the Court of Criminal Appeal, his Honour affirmed the presumption that jurors conscientiously follow directions given by the trial judge.
Finally, the court noted the public interest in joint trials: they avoid wasted resources, spare witnesses from giving evidence twice, and eliminate the risk of inconsistent verdicts. The decision was made on the material available, and the court noted expressly that it would not foreclose a further application if circumstances changed, provided any such application was made before the jury was empanelled.
Orders Made
- The application that the trial of Younes be severed from that of Barakat was refused.
Key Takeaways
- An accused seeking severance under s 21(2) of the Criminal Procedure Act 1986 (NSW) bears a heavy onus of demonstrating that a joint trial would be unfair; this onus is not easily discharged.
- Where charges of murder and accessory after the fact arise from the same events, the accessory charge is inherently linked to proof of the principal offence, which weighs strongly in favour of a joint trial.
- Appropriate jury directions are generally sufficient to address the risk of prejudice arising from evidence admissible against one accused but not another, except in cases involving particularly prejudicial material such as out-of-court statements made by one co-accused about another.
- The public interest in avoiding duplicated proceedings, inconsistent verdicts, and unnecessary burden on witnesses is a relevant consideration in severance applications.
- A refusal of severance at the pre-trial stage does not permanently foreclose the issue; the Supreme Court confirmed that a further application remains available if new material comes to light, provided it is brought before jury empanelment.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 349(1)
- Criminal Procedure Act 1986 (NSW), s 21(2)
- Evidence Act 1995 (NSW), s 91
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 14(1)(c), 17(1)
Cases
- Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424
- Dupas v R [2010] HCA 20; 241 CLR 237
- Gilbert v The Queen [2000] HCA 15; 201 CLR 414
- Madubuko v R [2011] NSWCCA 135
- R v Baartman (unreported, NSWCCA, 6 October 1994)
- R v Fernando [1999] NSWCCA 66
- R v Gibb & McKenzie [1983] 2 VR 155; (1982) 7 A Crim R 385
- R v Middis (unreported, Supreme Court of NSW, 27 March 1991)
- R v Pham [2004] NSWCCA 190
- Saunders v R (1994) 72 A Crim R 347
- Symms v R [2003] NSWCCA 77
- Webb and Hay v R (1994) 181 CLR 41