Khoury v R

Citation: Khoury v R [2021] NSWCCA 3
Court: Court of Criminal Appeal
Date: 3 February 2021
Judge(s): Bathurst CJ; Hoeben CJ at CL; Beech-Jones J

Background

The appellant was a drug dealer in south-western Sydney who, according to the Crown, recruited a group of associates to shut down rival dealers through intimidation and violence. He operated from a bedsit at Villawood and a shop at Chester Hill. He did not personally participate in the home invasions that followed; the Crown case was that he directed and approved them from these premises while others carried them out.

Between 29 June and 4 July 2010, the group carried out a series of armed home invasions. The culminating event, on the night of 1 July 2010, was an attack on the Lurnea home of Kesley and Tracey Burgess, during which Kesley Burgess was killed with meat cleavers. The appellant was not present at the scene. The Crown case was that he participated in the agreement to conduct the invasion as part of an extended joint criminal enterprise, having approved the raid at a meeting at the Chester Hill shop earlier that evening.

The appellant was convicted by a jury of murder (count 6) and armed robbery (count 8) in relation to the Burgess home invasion, among other offences. He sought leave to appeal out of time against those two convictions on the sole ground that the verdicts were unreasonable (at [3]).

Legal Issues

• Whether the jury could be satisfied beyond reasonable doubt that the appellant was a party to an agreement to conduct the Burgess home invasion, such that he was guilty of murder and armed robbery under the principles of extended joint criminal enterprise (at [10])
• Whether the evidence of the principal Crown witnesses, each of whom had significant credibility problems, was sufficient to sustain a verdict of guilty when considered alongside the whole of the evidence and the logic of events

Decision

The sole ground: unreasonable verdict

The Court confirmed the applicable principles from SKA v The Queen, The Queen v Baden-Clay and Pell v The Queen: the appellate court must engage with the whole of the evidence and form its own view as to whether it was open to the jury to be satisfied beyond reasonable doubt, while recognising the advantage the jury enjoyed in seeing and hearing the witnesses (at [595]–[599]). The Court also confirmed, following Murray v The Queen, that rejection of the appellant's denials did not of itself establish guilt; the jury had to be positively satisfied of his participation in the relevant agreement (at [600]).

Credibility of the Crown witnesses

The Court accepted that the three principal Crown witnesses who gave direct evidence of the meeting at the shop, Tamapua, Witness A and Kraak, could not individually be regarded as generally credible or reliable (at [601]). Tamapua was an admitted liar, perjurer, and home invasion participant who had lied to police in his initial interview and had significant incentive to inculpate the appellant (at [602]–[603]). Kraak's evidence was internally inconsistent and he admitted numerous lies (at [605]–[607]). Witness A admitted lying to police, had sought to conceal Tamapua's involvement, and had maintained contact with him after his arrest (at [608]). The Court concluded that the evidence of these three witnesses, taken in isolation, was not capable of satisfying the jury beyond reasonable doubt of the appellant's participation in the agreement (at [613]).

The circumstantial case that resolved the doubt

The Court identified several matters of objective evidence that, taken together with the oral evidence, were sufficient to sustain the verdicts. All witnesses were consistent that it was Karimi, not Tamapua, who identified the Burgess home as a target and described the drugs available there (at [615]). Jacob Burgess gave evidence that he had no prior dealings with Tamapua, making it inherently unlikely that Tamapua independently suggested the "Jacob Job" (at [614], [617]). Mitchell Kearns gave evidence that he had pointed out the Burgess home to Karimi's cousin and identified it as a drug source (at [616]).

Critically, the telephone chronology showed that Karimi had called his cousins before the Tarago even reached the Warwick Farm invasion, not after it failed (at [619]). The Court found it unlikely that Karimi and Tamapua formulated the plan to invade the Burgess home in the few minutes between leaving the shop and making those calls (at [620]). The absence of calls between Karimi and his cousin between 10.45 pm and 11.08 pm suggested that the arrangement to meet at Granville and travel to Lurnea had been agreed before the Warwick Farm invasion went wrong (at [656]). The Court rejected the submission that it "beggars belief" that the group would have been directed to Warwick Farm if the Lurnea location had already been identified; the meeting with the cousin at Granville was consistent with the cousin being needed to identify the precise address in Lurnea (at [653]).

The Court also relied on: the appellant's established role as the directing mind of the group's prior offences (at [621]); the close relationship between the appellant and Karimi, who was described as "the older brother" and who dealt drugs at the appellant's direction, making it open to the jury to find Karimi would not have organised the job independently (at [622]); the falsity of the appellant's evidence that he had left the shop before the group returned from the pub (at [623]); the evidence from multiple witnesses that the appellant directed Natuba to be taken to Bankstown rather than Liverpool Hospital after the invasion (at [624]); the appellant's fingerprints on the Jim Beam tin recovered at the shop, which contained DNA consistent with the deceased (at [625]); and Mir's statement to his girlfriend that the deceased "wasn't dealing for the person who runs the area" (at [626]).

The Court concluded that these matters provided powerful support for the oral evidence and that, taken together, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on counts 6 and 8 (at [627]).

Orders Made

• Time for the appellant to file a notice of appeal extended to 12 November 2019
• Leave to appeal granted
• Appeal dismissed

Key Takeaways

• In dismissing the appeal, the Court of Criminal Appeal confirmed that an unreasonable verdict ground requires the appellate court to engage with the whole of the evidence and form its own view, while giving proper weight to the jury's advantage in assessing witness credibility in person over a long trial (at [595]–[599]).

• Where the principal witnesses supporting a conviction each have significant credibility problems, a conviction may nonetheless be sustained if the circumstantial and objective evidence, considered alongside the oral evidence, excludes reasonable doubt; the Court found that the telephone chronology and physical evidence here performed that function (at [613], [627]).

• Rejection of an accused's blanket denial of involvement does not itself establish guilt of a specific charge; the prosecution must still positively prove, beyond reasonable doubt, participation in the particular agreement or enterprise relied upon, following Murray v The Queen (at [600]).

• Consistency among witnesses on a particular factual matter, even witnesses who are each otherwise unreliable, may carry evidential weight when that consistency extends to an objective fact, such as the identity of the person who identified a target (at [615]).

• Under the extended joint criminal enterprise doctrine as applied here, a person who remained off-site but who approved and directed a home invasion, provided weapons, and controlled the group's operations was found to have participated in the relevant criminal agreement, even though the fatal violence at the scene was carried out by others (at [9], [627]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26
- Pell v The Queen [2020] HCA 12; 94 ALJR 394
- R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35