Citation: R v Khayat (No 4) [2019] NSWSC 1317
Court: Supreme Court of New South Wales
Date: 14 March 2019
Judge(s): Adamson J
Background
Two brothers were charged on indictment with conspiracy to do acts in preparation for a terrorist act under the Criminal Code Act 1995 (Cth). The alleged conspiracy involved an improvised explosive device and an improvised chemical dispersal device, and was said to have occurred between January and July 2017.
Following their arrest, the two accused each participated in recorded police interviews. One brother made extensive admissions, acknowledging his involvement in constructing a bomb, transporting it to Sydney International Airport concealed in a meat grinder, and placing it in a sibling's checked luggage on an outbound flight. He also admitted involvement in producing chemical weapons under instructions from an ISIS operative. Notably, he stated in his interview that the other accused, who had accompanied the group to the airport, had no knowledge of the bomb or any involvement in the broader scheme.
The second accused made far fewer admissions. His recorded interview was relied upon by the Crown not for confessions but for alleged lies said to demonstrate consciousness of guilt. The Crown case against him was therefore largely circumstantial, compared with the direct and comprehensive admissions underpinning the case against his co-accused. The second accused applied for a separate trial.
Legal Issues
- Whether the second accused had demonstrated a real risk of positive injustice arising from a joint trial with his co-accused.
- Whether a jury could properly compartmentalise the co-accused's comprehensive admissions when assessing the circumstantial evidence against the applicant.
- Whether orthodox jury directions were sufficient to overcome any resulting prejudice, or whether the "intellectual gymnastics" required of the jury were too demanding.
- Whether the principles governing applications for separate trials, as summarised in Regina (Commonwealth) v Baladjam (No 49), applied on the facts.
Decision
Adamson J refused the application, finding that the second accused had not discharged the onus of demonstrating that a joint trial would cause him positive injustice. The court accepted the general principles from Baladjam (No 49), which establish that co-accused charged with a joint enterprise should ordinarily be tried together, and that a separate trial is warranted only where the applicant can show a real risk of positive injustice, typically by establishing that the co-accused's prejudicial material would make the weaker case against the applicant immeasurably stronger.
The court was not persuaded that there was a qualitative difference in the Crown's capacity to prove the charge against each accused. While one accused had made detailed admissions, the other's apparent lies in his recorded interview were themselves capable of founding a consciousness-of-guilt inference. On that basis, each accused had arguably incriminated himself significantly, albeit through different means.
Adamson J also rejected the submission that the jury would inevitably use the co-accused's admissions as a lens through which to view all of the circumstantial evidence. The court found that the Crown's circumstantial case was capable of generating significant inferences independently, without reliance on those admissions. In those circumstances, the risk that the admissions would "join the dots" for the jury was not established.
The court further noted that it is not uncommon for two co-accused to be tried jointly where one has given a comprehensive record of interview and the other has responded far more guardedly. An appropriate direction to the jury was capable of ameliorating any residual prejudice, and the interests of the administration of justice supported a single trial given the substantial body of evidence common to both cases.
Orders Made
- The application for a separate trial made by the second accused was refused.
Key Takeaways
- The starting point in joint enterprise cases is that co-accused should be tried together; the onus falls squarely on the applicant to demonstrate that a joint trial would cause positive injustice.
- A separate trial is warranted only where the applicant can satisfy a three-limbed test: the evidence against the applicant is significantly weaker and different; the co-accused's evidence is highly prejudicial but inadmissible against the applicant; and there is a real risk the weaker case will be made immeasurably stronger as a result.
- Refusing the application, the Supreme Court found that the second accused's apparent lies in his recorded interview were themselves capable of supporting a consciousness-of-guilt inference, meaning the evidential imbalance between the two accused was not as stark as the applicant contended.
- Circumstantial evidence that is capable of founding significant inferences independently of a co-accused's admissions will generally undermine an argument that those admissions would impermissibly "join the dots" for the jury.
- Orthodox jury directions remain a recognised and accepted mechanism for managing prejudice arising from the differential strength of cases in joint trials, and courts will not assume juries are incapable of following such directions.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 11.5(1), 101.6(1)
Cases:
- Regina (Commonwealth) v Baladjam (No 49) [2008] NSWSC 1468
- R v Pham [2004] NSWCCA 190
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13