Citation: R v Jaghbir (No 3) [2020] NSWSC 1383
Court: Supreme Court of New South Wales
Date: 12 October 2020
Judge: Davies J
Background
The accused was charged as an accessory before the fact to the murder of a man shot dead while asleep in his unit at a secure residential building in Mortlake on 10 March 2017. The building had multiple layers of electronic and key-based access controls, meaning the assailants could not have entered the victim's unit without a key or inside information about the building's layout.
The Crown alleged that the accused, a tradesperson who had been asked to repair the front door of the victim's unit approximately one week before the killing, had provided the assailants with either a duplicate key to the unit, information about how to navigate the building's staircase to avoid the electronic lift, or both. Two days before the murder, an unsuccessful attempt had been made to access the unit.
The trial proceeded before Davies J sitting alone, following the accused's successful application for a judge-alone trial, the reasons for which were published in the earlier decision R v Jaghbir (No 2) [2020] NSWSC 955.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that the accused was an accessory before the fact to murder, specifically by providing a key and/or building access information to the assailants.
- Whether, in a circumstantial case, the combination of established facts excluded any reasonable explanation consistent with the accused's innocence.
- Whether the accused had the requisite knowledge that the assistance he provided would facilitate murder.
- What weight, if any, should be given to the accused's possible motives for involvement.
Decision
Davies J set out the applicable legal principles in detail, as required by s 133 of the Criminal Procedure Act 1986 (NSW) for judge-alone trials. The elements of being an accessory before the fact require proof that the accused intentionally assisted the principal offenders in preparations to commit the crime, that the crime committed was one the accused intended or foresaw, and that the accused had knowledge of the essential facts making the principal's conduct criminal.
The Crown's case was entirely circumstantial. The judge applied the established principle that in such cases, individual facts need not each be proved beyond reasonable doubt, but the combination of those facts must exclude any reasonable hypothesis consistent with innocence. The court found that the accused was the only person who could have provided a duplicate key to the victim's unit, given his access to it for repair work shortly before the murder. A recorded conversation in which the accused made admissions pointing to involvement in facilitating entry was also central to the findings.
The court considered evidence of the unsuccessful attempt to enter the unit two days before the murder, the assailants' apparent knowledge of the building's rear staircase access (which avoided the electronic lift), and the accused's admission in a recorded conversation suggesting he had some role in organising the assailants' entry. Taken together, Davies J concluded these facts left no reasonable explanation consistent with the accused's innocence.
On the question of motive, the judge identified three possible explanations for the accused's involvement: a prior retaliatory killing in which the victim was a suspect and whose last victim was a friend of the accused; a financial grievance described by the accused himself in the recorded conversation; and a possible payment of $25,000 from a third party. Davies J treated motive as a contextual consideration rather than an essential intermediate fact, noting its absence would have weakened but not destroyed an otherwise strong circumstantial case.
Orders Made
• The accused Ahmed Jaghbir is found guilty of procuring, aiding and counselling unknown persons to murder Kemel Barakat.
Key Takeaways
- In a circumstantial case, individual facts forming the basis for an inference of guilt do not each need to be proved beyond reasonable doubt; it is the combination of those facts that must exclude any reasonable hypothesis consistent with innocence, following Shepherd v The Queen (1991) 170 CLR 573 and related authorities.
- Motive is not an essential intermediate fact in an accessory-before-the-fact prosecution. The Supreme Court confirmed that the absence of an identifiable motive weakens, but does not destroy, a circumstantial case that is otherwise strong on the evidence.
- A conviction as an accessory before the fact requires proof that the accused intentionally assisted the principal offenders in preparing to commit the crime, and that the accused had knowledge of all essential facts making the principal's conduct criminal, including the principal's state of mind at the time.
- Sufficient evidence existed here to establish beyond reasonable doubt that the accused was the only person with both access to the victim's unit and the means to provide a duplicate key to the assailants, where the building's multiple layers of security access would otherwise have prevented their entry.
- Under s 133 of the Criminal Procedure Act 1986 (NSW), a judge presiding over a judge-alone criminal trial must set out the legal principles applied, make findings of fact relied upon, and take into account any warning that would have been required for a jury.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), ss 38, 165
Cases
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Burrell v R [2009] NSWCCA 163
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Davidson v R [2009] NSWCCA 150
- Plomp v The Queen (1963) 110 CLR 234
- R v Jaghbir (No 2) [2020] NSWSC 955
- R v Merritt [1999] NSWCCA 29
- Shepherd v The Queen (1991) 170 CLR 573
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35