R v Alkanaan, R v Toleafoa

Supreme Court of NSW|2014-10-31|Before: Garling J

Judgment 1On 4 April 2014, Mr Falah Alkanaan was arraigned on an Indictment which contained three counts to each of which he pleaded not guilty. 2His co-accused, Mr Ben Toleafoa, was also arraigned on the same day with respect to one count (Count 2) on the same Indictment. He also pleaded not guilty. 3On 2 May 2014, the trial of the charges was fixed to take place on 16 February 2015, for an estimated period of five weeks. 4On 25 July 2014, Mr Alkanaan filed a Notice of Motion in which he sought an order pursuant to s 21(2) of the Criminal Procedure Act 1986 severing Counts 3 and 4 on the Indictment, and an order that Counts 3 and 4 be tried separately from the other counts. 5Mr Toleafoa did not join in that application, and made no submission with respect to it. 6For the reasons which follow, the application should be dismissed.

The Indictment 7The Indictment charges Mr Alkanaan with three offences. They are: (1)On 2 February 2013, at Blackett in the State of New South Wales, did murder Hussein Khanafer. (2)[Charge against Ben Toleafoa]. (3)Between 8 February 2013 and 7 March 2013, at Silverwater and elsewhere in the State of New South Wales, did conspire with Peta Dawson and Arna-Maree McMiles to induce a person to be called as a witness in a judicial proceedings, namely Kelly Khanafer, to withhold true evidence. (4)Between 8 February 2013 and 7 March 2013, at Silverwater and elsewhere in the State of New South Wales, did conspire with Peta Dawson and Arna-Maree McMiles to induce a person to be called as a witness in a judicial proceedings, namely Joshua Nuualiitia, to give false evidence.

Crown Case Statement 8At the time the applicant was arraigned, the Crown filed a Crown Case Statement. It was to the following effect: "1 The victim, Hussein Khanafer ("Khanafer"), and the accused, Falah Alkanaan, were well known to each other. Khanafer was attempting to obtain money from Alkanaan. On 2 February, 2013, Khanafer sent a text message to Alkanaan in which he said, "Good morning, cuz. I need my today $4500". 2 At about 12.30pm on 2 February, 2013, Khanafer drove with his wife Kelly Khanafer, to Alkanaan's home at 20 Boldrewood Road, Blackett, in their white Nissan Tiida car. They parked in the street in front of this address. Whist Kelly Khanafer remained in the car, Khanafer walked to Alkanaan's front door. He and Khanafer had a conversation on the front verandah. 3 Alkanaan's vehicle, a bronze coloured Jeep, was parked in his driveway, and at one point during this meeting Alkanaan stood close by this vehicle. 4. At 12.41pm a call was made from a mobile phone belonging to Alkanaan to a mobile phone used by co-accused, Ben Toleafoa. 5 At about 1.10pm, Khanafer walked back to the street as a silver Ford Falcon BS-72-NS driven by Toleafoa arrived and parked behind Khanafer's car. Khanafer approached this vehicle and spoke through the driver's window with Toleafoa. 6 At this moment, Alkanaan walked from his front yard with a shotgun. From a distance of about one metre he shot Khanafer once in the head as Khanafer was standing by Toleafoa's vehicle. Khanafer fell to the roadway. 7. Kelly Khanafer was still sitting in Khanafer's car. She ran to Khanafer and tried to help him as she called out for assistance. 8 Alkanaan got into the silver Falcon, which was driven from the scene at speed by Toleafoa, leaving Boldrewood Road in the direction of Carlisle Avenue. The vehicle stopped over a small causeway in Carlisle Avenue. The front seat passenger (Alkanaan) got out, carrying an object. He squatted near a drain. 9 Police who were at the scene a short time later searched this drain, finding in it a double-barrelled 12 gauge shotgun and a spent 12 gauge shotgun cartridge. 10. Ambulance and medical personnel attended the scene. Attempts to revive Khanafer were unsuccessful and he was pronounced dead a short time later. 11. On 8 February, 2013, Alkanaan was arrested at Domestic Terminal, Sydney Airport, where he was attempting to board a flight to Darwin, posing as Joshua Nuualiitia. He was carrying identification documents belonging to Joshua Nuualiitia, and wearing plain glass spectacles as a disguise. 12. Alkanaan was interviewed by police. He told police he had been inside his home after speaking outside with Khanafer, when he had heard a shot and had run to the front door. He had seen a silver Ford Falcon behind the white Nissan car and had seen Khanafer fall to the roadway. He had then heard a second shot, at which point he had run through the house and away through the backyard as he believed that he himself was in danger. He declined to name the person or persons in the silver Falcon, giving as his reason that he feared reprisals if he did so. 13. Forensic examination of the shotgun and cartridge retrieved from the drain indicated the presence of the DNA of both Alkanaan and Khanafer on the shotgun; and that of Alkanaan on the cartridge. 14. Telephone calls were intercepted in the period between the shooting and the arrest of Alkanaan. On 7 February 2013 in an intercepted call with his girlfriend, Arna-Maree McMiles, the accused said, "I've still got it if anybody asks... the one the coppers got, it's not mine...I got it okay...it's silver and wood and yeah. The name of it - double barrel shotgun... Remember, I only took two from you...the bullets, the bullets". 15. On 13 March 2013 police searched the accused's Jeep. Secreted behind the glove box were two 12 gauge shotgun shells. 16. In a telephone conversation with McMiles on 8 February, Alkanaan was told by McMiles that she had found a white t-shirt that "needed to be soaked as it had black stuff on it". He asked her, "Is there brains on the t-shirt or not?". 17. In a telephone conversation from gaol on 1 March 2013 with Peta Dawson, the mother of McMiles, the accused said, "Fuck my mate, tell him I killed him and I'm gonna kill him as well...". In another such call on the same day, Alkanaan told McMiles that, "Ben is my man honestly ... he didn't say nothing did he?". ... 20. Text messages passed between mobile phones used by Alkanaan and Toleafoa in the 24 hour period before the shooting. 29 minutes before the shooting Toleafoa received a 23 second telephone call from Alkanaan. 21. On 28 May 2013 a conversation of Toleafoa, his girlfriend and her sister was recorded on a listening device. Toleafoa said, "I was there but I didn't get out of the car...I was talking to the guy, I was like 'don't worry about it, man...everything will be fixed'...and that's when he walked out. I didn't know why he was walking out...he just goes, 'aw, you don't have the balls'. He said, 'yes, I do'...then he straight... he fired the first shot... I turned back and he jumped in the car... and then I went like up three houses and I said 'jump out' and he jumped out and he went down to the alley way". 22. ... 23. Following the arrest of Alkanaan, his telephone calls from prison were monitored. A surveillance (listening) device was also employed by police to monitor visits he received in prison from his partner, Arna-Maree McMiles, and her mother, Peta Dawson." 9Together with the submissions which were filed on the hearing of the Motion, the Crown also filed a Statement of Facts which outlined, in greater detail, the events upon which the Crown relies with respect to Counts 3 and 4 on the Indictment, namely the two conspiracy counts. 10It is apparent that the Crown alleges that on 21 February 2013, at about 10.20am, the applicant, Mr Alkanaan, and his two co-accused, McMiles, and Dawson, met at the Silverwater Jail. This meeting was intercepted using a lawfully obtained listening device. During that meeting an agreement was formed between the three parties to conspire to induce witnesses to withhold true evidence and to give false evidence. 11The Crown's case is that this conspiracy had two parts. The first agreement was to put pressure on Kelly Khanafer to withdraw or change her evidence in relation to seeing Alkanaan shooting the deceased, Hussein Khanafer. The second agreement alleged by the Crown was to fabricate evidence surrounding how Alkanaan took possession of Joshua Nuualiitia's identification. The evidence with respect to each of these counts consists largely, but not entirely, of recordings of conversations between all of the conspirators, and observations of the nature of the two co-conspirators. 12These conversations happened a number of times and on different days. The substance of the first agreement was that Mr Alkanaan's two co-conspirators would make contact with a mutual associate, Mr Paul Demarco, and they would persuade him to speak to Kelly Khanafer and get her to alter her evidence. With respect to the second agreement, the Crown's case in summary is that an agreement was made to speak with Nuualiitia to tell him to tell the police that he had lost his wallet at McDonald's in St Marys, and to hide the true circumstances of how Alkanaan came into possession of the wallet.

Submissions of the Applicant 13The applicant's submissions were contained in writing and were also delivered orally. In submissions, the applicant commenced by acknowledging, and accepting, that the evidence which would be led by the Crown in support of Counts 3 and 4 on the Indictment, would be relevant and admissible in a trial of the count of murder on the Indictment. 14When asked to describe the issues in the trial, in the sense of the basis of his present understanding of what those issues were likely to be, counsel for the applicant indicated that there were two, both of which were directed to the issue of the requisite mental element for the commission of the offence. 15Counsel submitted that, subject to the receipt of further evidence, it was the applicant's present intention to raise a question of diminished responsibility. As well he indicated, again subject to the receipt of further expert evidence, that it was likely that the applicant would raise the issue of accident, namely, that the shotgun was discharged, unintentionally and by accident, with the consequence that the applicant would not be guilty of the murder of Mr Khanaafer. 16The applicant submitted that the addition on the Indictment of the two conspiracy counts to the count of murder "... overloads and complicates the Indictment". He submitted that the charge of murder was utterly disparate from the charges of conspiracy, and that the Indictment was overloaded, thereby: "... potentially creating oppression, unfairness, confusion in the minds of the jury and an unmanageable trial". 17In oral submissions, counsel for the applicant put that the inclusion of the additional conspiracy charges on the Indictment "... removed the focus" from the principal count on the Indictment, being the charge of murder. 18He also submitted that inclusion of the three counts would lead to the accused being embarrassed in his defence. In support of this submission, attention was drawn to the complexity of directions which would need to given by the trial Judge to the jury with respect to the two conspiracy charges which, it was submitted, added to the complexity of the overall trial. 19In support of this submission, the applicant pointed to the fact that the two co-conspirators with respect to the conspiracy charges were not charged jointly with the applicant on the indictment before the Court, but rather that the Crown was proceeding separately against them in the District Court. 20In summary, counsel for the applicant encapsulated the essence of the basis for the application when he made this submission orally: "I concede that the evidence post conduct in relation to the accused is relevant to the mental element of the offence and that evidence will end up before the jury. I can't see how I can stop it. So we will have the evidence but why do we need to have the added complication of the legal elements in relation to conspiracy to clutter, effectively, what should be the focus of the trial namely the criminal responsibility of the accused in relation to Count 1."

Submissions of the Crown 21The Crown opposed the application of Mr Alkanaan, and submitted that the applicant had not demonstrated to the Court that it should form the opinion required by s 21(2) of the Criminal Procedure Act 1986, before the Court would order separate trials of the counts on the Indictment. 22The Crown submitted that the evidence which it would lead in support of the proof of the conspiracy counts was relevant to, and admissible in, the Crown's case on the murder count. It submitted that such evidence had a high probative value for the jury in the determination of the murder charge. It submitted that the addition of the need for the Court to give directions to the jury with respect to the separate conspiracy charges would not result in any significant additional extension of the trial, nor of any significant complexity for the jury. 23The Crown accepted that in order for the applicant to be convicted of the conspiracy counts the jury would have to be directed that they needed to be satisfied, beyond reasonable doubt, of the existence of the conspiracy to induce the witnesses to give false evidence or withhold true evidence. The Crown submitted that in that respect, it would be appropriate for the Court to give a direction to the jury to a similar effect before the jury was permitted to take the evidence supporting Counts 3 and 4 into account as consciousness of guilt evidence with respect to Count 1. 24The Crown submitted that this would in fact place a higher burden on the Crown, and would be beneficial for, rather than adverse to, the interests of the applicant. 25The Crown also submitted that it would be necessary for the Court to consider the public interest in not having the applicant tried separately with respect to the conspiracy counts because having a single trial would mean that the evidence would not need to be called twice. In that respect the Crown pointed out that in addition to the recordings of the various conversations which will form one of the bases of the Crown's case, there were a number of other potential police witnesses, and at least one lay witness, who it is intended will give oral evidence about the conduct of the two co-accused, in furtherance of the conspiracy. 26The Crown pointed to the undesirability, in the public interest, of putting those witnesses through a second trial, and the unnecessary cost and expense to the administration of justice of such a separate trial. 27The Crown pointed out that, in the context of those witnesses, they were also expected to give evidence at a trial in the District Court with respect to the two co-conspirators, and ultimately if the Court did sever the counts from the Indictment, those witnesses would be giving evidence three times with respect to these events. 28Shortly put, the Crown submitted that the counts on the Indictment fell within the statement of principle contained in R v Assim [1966] 2 QB 249, which the Crown submitted was approved in McCarthy v Regina (1984) 14 A Crim R 155 at 159, namely: "Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in the one indictment and can, subject always to the discretion of the court, be tried together." 29The Crown submitted that the application did not meet the requisite test in s 21(2) of the Criminal Procedure Act because the applicant could not demonstrate how he would be prejudiced or embarrassed in his defence by reason of being charged with more than one offence, and further submitted that the applicant had not demonstrated that there was any other reason why it was desirable to have the charges tried separately. 30The Crown drew attention to the statement of principle in R v Verma (1987) 30 A Crim R 441 at 443 that: "... The most straightforward case in which separate trials will not be ordered is whether the evidence admissible on the trial of one charge is in any event admissible on the trial of the other, by way (for example) of similar facts". 31It submitted that this case was substantially the same as Verma, and was typically the very type of case where the Court would not order a separate trial of Counts 3 and 4 on the Indictment.

Applicable Legislation 32Section 21(2) of the Criminal Procedure Act is the applicable legislation. It says: "(2) If of the opinion: (a)that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b)that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment." 33Both parties accept that the applications are made in accordance with the provisions of the Criminal Procedure Act. It is appropriate that I set out the relevant parts. 34Part 2 of the Criminal Procedure Act deals with indictments. Section 21 deals with a question of a separate trial. It is in the following terms: "21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. (5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial: (a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict: (i) on the count or counts in respect of which the trial is postponed, or (ii) on the indictment, as the case may be, (b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced, (c) subject to the Bail Act 2013 , the court may commit the accused person to a correctional centre. (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes." 35Section 21(4) provides that an order under s 21(2) may be made before a trial or at any stage during the trial. 36Part 3 of the Criminal Procedure Act deals with criminal proceedings generally, and includes s 29 which addresses the hearing of multiple offences. Section 29 is in the following form: "29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances: (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice."

Principles of Law 37The Crown submissions, and the application by the applicants' counsel that the evidence relevant to Counts 3 and 4 would be admitted with respect to the offences of murder in Count 1, correctly reflected the authorities. 38In McKey v Regina [2012] NSWCCA 1, Latham J (with whom Whealy JA and Hislop J agreed) said at [26] this: "26 The law has always recognized the legitimacy of reliance upon post-offence conduct in support of a prosecution case. The most common example of such post-offence conduct is lies told by an accused (Edwards v The Queen (1993) 178 CLR 193), although an accused's silence in response to an allegation which he/she might reasonably be expected to deny (R v MMJ [2006] VSCA 226), the destruction of evidence ( R v Nguyen [2001] VSCA 1) and attempts to influence the evidence of witnesses ( R v Smit & Ors . [2004] NSWCCA 409) all fall into the same category. Similarly, 'Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. ...... It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself :.. ' Wigmore on Evidence, Vol 2, (1979) par 276(4)" 39In Kuehne v R [2012] NSWCCA 270, Fullerton J, after referring to the decision in McKey, said at [68] this: "68 Her Honour did observe that where the Crown intends to rely upon an accused's post offence conduct as evidencing consciousness of guilt, the evidence must be capable of rationally supporting an inference of guilt of the crime charged before it is admitted for that purpose and, as part of that enquiry, the conduct must be identified by the Crown with precision and its capacity to constitute an implied admission of the offence charged made patent." 40Applying those principles, it is clear that the evidence of the post-murder conduct of the applicant would be admissible and may be persuasive in the jury's mind. Caution does not dictate that there is any reason here to think that the counts ought be tried separately on this basis. 41In McCarthy v Regina (1984) 14 A Crim R 155, Street CJ (with whom Reynolds and Miles JJ) agreed, said at p159 - 160: "The test to be applied when examining whether or not the interests of justice are such as to permit the joinder of two counts was expressed in a decision of Assim ([1966] 2 QB 249) in terms that have been commended on a number of subsequent occasions in decisions of authority, both in this country and in England. At 261 in the judgment of that case it was said: "As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases." " 42It is clear that if the two preconditions to the exercise of the Court's power to order separate trials of counts on an indictment are established, the Court maintains a discretion which it is required to exercise showing regard to the interests of justice. 43In Samadi and Djait v Regina [2008] NSWCCA 330; (2008) 192 A Crim R 251, Beazley JA (with whom Allsop and Price JJ agreed), said at [108]: "108 The question of whether there should be joint or separate trials is a matter for discretion for the judge at the trial: see R v Grondkowski; R v Malinowski [1946] 1 KB 369; [1946] 1 All ER 559; Merritt v Roso (1985) 19 A Crim R 360 at 364. The discretion must be exercised judicially and not capriciously, having regard to the interests of justice as well as the interests of the accused: see Slattery CJ in CL and Carruthers J at 364." 44Latham J (with the agreement of McClellan CJ at CL and Schmidt J) in R v Ceissman [2010] NSWCCA 50, adopted this approach at [21] and noted that the interests of justice are not solely referrable to the interests of an accused.

Discernment 45The first question which must be determined is whether I am satisfied that the applicant may be embarrassed or prejudiced in his defence by reason of all three counts remaining on the Indictment. 46Because of the properly made concession that the evidence with respect to the conspiracy counts was admissible on the murder count, any question of embarrassment or prejudice must be limited to some feature of the proposed trial over and above the evidence relevant to the conspiracy charges being put before the jury. 47The only additional element pointed to is the trial Judge's directions about, and the jury's consideration of, the guilt or innocence of the applicant on the conspiracy counts. 48I am wholly unpersuaded that these additional burdens, if such they be, are of a sufficient extent to cause any prejudice or embarrassment to the applicant in his defence of the proceedings. The directions about the conspiracy charge are not particularly complex, a written outline of the element of the offences are likely to be provided to the jury and the jury will be instructed to consider separately with respect to each count, whether the evidence led satisfies them beyond reasonable doubt of the guilt of the applicant. I do not accept that having the jury undertake such consideration will distract its focus from making its determination in the murder count. 49There is no other reason advanced which satisfies me that it is desirable that the charges be heard separately. The two issues announced by counsel for the applicant as likely to arise do not suggest that there ought be separate trials. 50As well, the interests of the administration of justice strongly favour the three counts being heard together so as to avoid the evidence to the extent that it depends upon the witnesses being called to support the existence of the conspiracy charged in Counts 3 and 4, being required to give evidence twice in respect of proceedings against the applicant. 51There is good reason why those witnesses should not be required to give their evidence, as being relevant to the applicant, on two separate occasions before two separate juries. Particularly is this so because they will also be required to give their evidence in the trial of the applicant's two co-conspirators which is presently scheduled to take place in the District Court late in 2014. 52Accordingly, I am satisfied that the interests of justice tell against making the order sought by the applicant.

Order 53The Court orders: (1)Application for separate trials of Counts 3 and 4 on the Indictment presented on 4 April 2014 dismissed.

Amendments 28 October 2016 - Restriction lifted as per orders made by Garling J on 28.10.2016. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2016

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