Citation: Khoury v R [2021] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 3 February 2021
Judges: Bathurst CJ at [1]; Hoeben CJ at CL at [629]; Beech-Jones J at [630]
Background
The applicant was a drug dealer in south-western Sydney who organised a criminal group that carried out a series of home invasions in late June and early July 2010. He did not personally participate in the physical offences. The Crown's case was that he recruited gang members, supplied weapons including meat cleavers, and selected or approved target premises, making him liable under the principles of joint criminal enterprise and extended joint criminal enterprise.
Two home invasions were carried out on the night of 1 July 2010. The first was intended to target a rival drug dealer but was carried out at the wrong address. The second was carried out at the home of the deceased in Lurnea, whose brother was known to be a drug dealer. The deceased was killed with meat cleavers in front of family members.
The applicant was convicted by a jury of multiple offences, including the murder of the deceased (count 6) and the armed robbery of the deceased's mother (count 8). He sought leave to appeal against those two convictions on the sole ground that the verdicts were unreasonable, arguing there was insufficient evidence to establish his participation in the relevant agreement underpinning the extended joint criminal enterprise.
Legal Issues
- Whether the verdicts on counts 6 and 8 were unreasonable, specifically whether there was sufficient evidence to establish that the applicant participated in an agreement to conduct the Lurnea home invasion with foresight that grievous bodily harm would be deliberately inflicted.
- Whether, when key witnesses had significant credibility and reliability problems, the cumulative effect of all evidence was still capable of satisfying the jury beyond reasonable doubt.
Decision
The Court unanimously dismissed the appeal and held that the verdicts were not unreasonable. For the extended joint criminal enterprise to be established, the jury had to be positively satisfied beyond reasonable doubt that the applicant participated in the agreement to carry out the Lurnea home invasion with foresight of the deliberate infliction of grievous bodily harm.
Bathurst CJ acknowledged that many key witnesses had serious credibility and reliability problems, and that their evidence, considered in isolation, was not capable of satisfying the jury beyond reasonable doubt. However, his Honour concluded that the totality of the evidence, viewed in context, was sufficient to support the verdicts.
That totality included several significant matters: Tamapua had no known connection to the Burgess family, making it less likely that he had independently proposed the attack on their home; the timing and brevity of phone calls between Karimi and his cousin were consistent with the plan to travel to Lurnea having been agreed before the first home invasion went wrong, not as a last-minute alternative; the applicant's established role in directing Karimi throughout the broader criminal enterprise; and the applicant's involvement in the other offences of which he was convicted. Taken together, these features provided powerful support for the conclusion that the applicant had approved the second attack.
Beech-Jones J reached the same conclusion by separate reasoning, noting that the telephone evidence in particular strongly undermined any suggestion that the Lurnea plan arose spontaneously after the first home invasion failed. Hoeben CJ at CL agreed with both Bathurst CJ and Beech-Jones J.
Orders Made
No orders were made in this decision.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an unreasonable verdict ground requires the appellate court to ask whether the jury, acting on the whole of the evidence, must reasonably have had a doubt about guilt, not merely whether some parts of the evidence were problematic in isolation.
- Credibility and reliability deficiencies in individual witnesses do not automatically render a verdict unreasonable where other, independent evidence provides strong cumulative support for the Crown's case.
- Under extended joint criminal enterprise, the Crown must establish beyond reasonable doubt that the accused participated in the relevant agreement with foresight that the particular type of serious harm (here, deliberate infliction of grievous bodily harm) would be carried out by others.
- Circumstantial evidence, including phone record timing, patterns of contact, and evidence of an accused's broader role in directing co-offenders, can collectively be sufficient to support proof beyond reasonable doubt even where direct witness testimony is unreliable.
- A person who recruits participants, provides weapons, and selects or approves target premises can be liable for murder committed by others during a home invasion on the basis of joint or extended joint criminal enterprise, without having been physically present at the scene.
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