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Supreme Court 16 April 2019

R v Khayat (No 6)

[2019] NSWSC 1318

Public order & justice offences
CRIME LIES AS CONSCIOUSNESS OF GUILT RULINGS MADE

Citation: R v Khayat (No 6) [2019] NSWSC 1318
Court: Supreme Court of New South Wales
Date: 16 April 2019
Judge(s): Adamson J

Background

The accused stood charged on indictment with conspiring to commit acts in preparation for a terrorist act, contrary to the Criminal Code Act 1995 (Cth). The alleged conspiracy involved planning to deploy either an improvised explosive device or an improvised chemical dispersal device. A co-accused was also charged.

Before the case reached the jury, the Crown sought to rely on several statements made by the accused in recorded police interviews as evidence of consciousness of guilt, intending to address the jury on those statements in its closing address.

Counsel for the accused opposed the Crown's proposal, arguing that certain statements were not capable of being characterised as lies and, even where they might be, the circumstances did not justify inviting the jury to draw a consciousness-of-guilt inference.

Legal Issues

  • Whether each of the four identified statements made by the accused in his recorded interviews was capable of amounting to a lie from which the jury could infer consciousness of guilt
  • Whether the Crown should be permitted to address the jury on those statements in its closing address, consistently with the principles in Edwards v The Queen (1991) 178 CLR 193

Decision

Statement (a): Contact with brother Tarek over the previous two years

The accused stated he had not "spoken" to his brother Tarek for two years. Evidence showed regular communication via the Telegram app, but uncontroverted evidence established that Telegram did not permit simultaneous spoken conversations (at [7]). Adamson J held the statement was literally true: the accused had communicated with Tarek but had not spoken with him in the conventional sense (at [8]). While the answer may have been misleading and could bear on credibility, it was not capable of amounting to a lie for the purposes of a consciousness-of-guilt direction, and the Crown was not permitted to rely on it in closing (at [8]).

Statement (b): Knowledge of whether Khaled Khayat was in contact with Tarek

The accused gave equivocal answers in interview, saying he did not "think" or merely "guessed" that Khaled was in contact with Tarek. Defence counsel accepted that the Chat Summaries in evidence indicated the accused actually knew of that contact (at [11]). Adamson J ruled that the matters raised in defence, including interview conditions and the accused's non-native English, were for the jury to weigh when determining whether the statements were lies and whether they reflected consciousness of guilt, rather than reasons to exclude the evidence from the Crown's closing (at [12]).

Statement (c): Knowledge of the welder machine purchase

The accused told police he did not know Khaled had bought a welder machine until the day they collected the package, 19 April 2017. Evidence established that the accused had a photograph of the delivery waybill, had searched a courier's tracking site on 17 April 2017, and had telephoned the courier company on 18 April 2017 to arrange redelivery (at [13]-[16]). Adamson J found the evidence capable of supporting a jury finding that the accused knew about the purchase at least from 17 April 2017, making the statement capable of amounting to a lie. Arguments about the accused's first language and the degree of his prior knowledge were matters for the jury (at [17]-[18]).

Statement (d): Surprise at Khaled and Amer's arrival on 15 July 2017

The accused claimed to have been surprised when Khaled and Amer Khayat arrived at Cleveland Street on 15 July 2017. Text messages between the accused and Khaled showed that the visit had been arranged in advance (at [20]). Defence counsel argued that the accused was genuinely surprised when he first heard of the visit that morning, even if not when they physically arrived. Adamson J accepted this argument might have force with a jury but held it went to whether the jury should be satisfied of the Edwards requirements, not to whether the statement was capable of being a lie. The Crown was permitted to address the jury on this statement (at [22]).

Orders Made

  • The Crown was permitted to submit in its closing address that statements (b), (c) and (d) amounted to consciousness of guilt.
  • The Crown was not permitted to submit in its closing address that statement (a) amounted to consciousness of guilt.

Key Takeaways

  • A statement that is technically or literally true, even if potentially misleading in context, may not be capable of constituting a lie for the purposes of a consciousness-of-guilt direction. The Supreme Court declined to permit the Crown to rely on the accused's answer about "speaking" to his brother where the method of communication (Telegram) did not involve spoken conversation in the conventional sense (at [7]-[8]).

  • Equivocal or hedged answers given in a police interview can be capable of amounting to lies where other evidence establishes that the accused had actual knowledge of the relevant facts, rather than mere belief or suspicion. Contextual factors such as interview conditions and language proficiency are matters for the jury to weigh, not automatic bars to the Crown's use of the statements (at [9]-[12]).

  • Under Edwards v The Queen, the threshold question for the trial judge is whether a statement is capable of amounting to a lie on the evidence. Once that threshold is met, questions about whether the jury should be satisfied that the statement was a lie, that it was material, and that it reflected consciousness of guilt are for the jury to resolve after a proper direction (at [12], [18], [22]).

  • Sufficient evidence of a chronology of events, such as tracking searches, courier calls, and waybill photographs, can support a finding that an accused knew more than their interview answers suggested, making those answers capable of constituting lies even where the accused advances explanations grounded in language or cultural context (at [13]-[18]).

  • Where a compelling innocent explanation for an apparent lie exists, the trial judge has a discretion to decline to permit the Crown to rely on the statement. However, Adamson J found no such compelling explanation in relation to statements (b), (c) and (d) sufficient to exclude them from the Crown's closing address (at [12], [22]).

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.5, 101.6

Cases
- Edwards v The Queen (1991) 178 CLR 193; [1993] HCA 63