R v El Masri

Mordaunt v Director of Public Prosecutions [2007] 171 A Crim R 510 CASES CITED : R v El-Masri (No 2) [2010] NSWSC 1327 R v Johnston [2000] NSWCCA 197 R v Williams (1970) 1 NSWLR 81

PARTIES : Crown Rami - El Masri - Applicant

COUNSEL : Mr TR Bailey - Crown Mr T Hoyle SC - Accused

SOLICITORS : Director of Public Prosecutions - Crown Aquila Lawyers - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: Nature of Application The applicant stood trial following the presentation of an indictment charging him with the murder of Mohammed Omar and the wounding of Mahmoud Omar at Homebush on 14 December 2008. At the conclusion of the Crown case, I directed that the jury enter verdicts of not guilty in relation to both charges. This the jury did. 2 On 19 November 2010 I handed down my reasons for directing verdicts of not guilty. On that occasion, senior counsel for the applicant made an application for the issue of a certificate pursuant to s2 of the Costs in Criminal Cases Act 1967 (CCC Act). He also made an application for the issue of a certificate under s6A of the Suitors Fund Act 1951. That latter application was in respect of proceedings on 1 - 3 November in relation to which it was necessary to discharge the first jury. 3 The Crown did not oppose either application. The Crown accepted that the necessary basis exists in relation to each application for the issue of the certificates sought. Nevertheless, it is necessary for the Court to satisfy itself that those preconditions have been met.

Application under section 2 CCC Act 4 The relevant sections of the CCC Act provide: "2 (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. … 3(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 3A(1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to "all the relevant facts" is a reference to: (a) the relevant facts established in the proceedings, and … " 5 It was not suggested that there was an act or omission of the applicant enlivening s 3(1)(b). The issue for the Court to consider is that posed by s 3(1)(a). 6 Some guidance as to the process to be followed in reaching a conclusion in respect of s 3(1)(a) has been provided by the decided cases. In R v Williams (1970) 1 NSWLR 81 Sugarman P, with whose judgment O'Brien J agreed, said as to the concept of "all the relevant facts" in s(1)(a): "I draw attention in particular to the phrase: "being in possession of evidence of all the relevant facts", and the emphasis which I have supplied is, I think, the emphasis with which the phrase must be read. This imports that there were relevant facts, evidence of which was not in the possession of the prosecution, before the institution of the proceedings. What relevant facts? Not "all" the relevant facts in any literal or absolute sense; omniscience is not to be attributed to the prosecution in the hypothetical inquiry which, I agree with Mr Bowie, is required. "All the relevant facts" means in my opinion, all the relevant facts as they finally emerge at the trial; the facts in the prosecutions case but, as well, the facts in the accused's case as those emerged from cross-examination of the prosecution's witnesses or from evidence called by the accused. That seems to me to be the nature of the hypothetical inquiry which is called for by s 3(1)(a). Suppose the prosecution before the proceedings were instituted had been in possession of evidence of the relevant facts in the accused's case as well as those in its own - suppose it had been in possession of evidence of all the relevant facts and not merely of evidence of the relevant facts in its own case - would it have been reasonable to institute the proceedings?" 7 In R v Johnston [2000] NSWCCA 197 Simpson J (with whom Wood CJ at CL agreed) set out the circumstances in which a certificate may be granted relevant to s 3(1)(a) as follows: "16 … as involving the following process: (i) an evaluation of all of the evidence as it emerged at trial; (ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted; (iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings; where it is concluded that, in those circumstances, it would not have been reasonable to institute the proceedings: (iv) a determination whether any act or omission of the accused contributed to the commencement of or continuation of the proceedings; and, where such an act or omission is found to exist: (v) a determination whether that act or omission was, in the circumstances, reasonable." 8 In Mordaunt v Director of Public Prosecutions [2007] 171 A Crim R 510 McColl JA extracted the following statements of principle from the authorities:

" 36 … (e) The task of the court dealing with an application under the CCC Act is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings: Allerton (at 559-560); the judicial officer considering an application must find what, within the Act, were "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them and must then determine whether, if the prosecution had been in possession of those facts before the proceedings were instituted, it would not have been reasonable to institute [them]; an applicant for a certificate must succeed on both the "facts issue" and the "reasonableness issue": Treasurer in & for the State of New South Wales v Wade & Dukes (Court of Appeal, 16 June 1994, unreported,) per Mahoney JA (with whom Handley and Powell JJA agreed); Ramskogler at 134-135 per Kirby P;

(f) The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559-560); Manley per Wood CJ at CL (at 9); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (NSW) (1992) 65 A Crim R 160 (164-165) per Sheller J (with whom Mahoney JA and Hope AJA agreed); … (h) The reasonableness of a decision to institute proceedings is not based upon the test that prosecution agencies throughout Australia use as the discretionary test for continuing to prosecute, namely whether there is any reasonable prospect of conviction, nor is it governed by the test in s 41(6) of the Justices Act 1902 [prior to its repeal] applied by magistrates, namely whether no reasonable jury would be likely to convict; the test cannot be a test of reasonable suspicion which might justify an arrest and it cannot be the test which determines whether the prosecution is malicious; … (i) the fact a prosecution may be launched where there is evidence to establish a prima facie case does not mean it is reasonable to launch a prosecution; there may be cases where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of that evidence … … (m) Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury: Manley per Wood CJ at CL (at [14]); Johnston (at [26] [29]) per Simpson J (with whom Wood CJ at CL and Sully J agreed); it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit: R v Dunne (Hunt J, 17 May 1990, unreported); …" 9 I have had regard to that guidance and those principles in considering the current application. Despite the lack of opposition by the Crown, it is still necessary for the applicant to prove that it was not reasonable for the prosecution to have instituted proceedings against him. It was submitted that on behalf of the applicant that had the DPP known in advance all the relevant facts, which included the deficiencies in evidence in the prosecution case, it would have been unreasonable to institute the proceedings. 10 The prosecution case was an entirely circumstantial one. It sought to place the applicant in the immediate vicinity of the deceased at the time when he was stabbed. It sought to establish animosity between the applicant and the deceased providing a motive for the attack. It sought to establish that the applicant acted aggressively towards the deceased. 11 The evidence of eyewitnesses who were present at the nightclub "Beirut by Night" at 1.30am on 14 December 2008 was capable of establishing those propositions. There was evidence that the applicant was on the dance floor, that some kind of altercation developed between him and the deceased and that he and the deceased were seen to be punching each other. 12 It was from that point onwards that the Crown case fell apart. The incontrovertible evidence was that the deceased had sustained seven - eight stab wounds from a sharp instrument or from sharp instruments. Two of those stab wounds were serious, one towards the centre of his chest and one in the upper left quadrant. That latter wound was the one which caused death and had a depth of 20cms. 13 Four other persons who were on the dance floor at the same time as the deceased and the applicant, suffered wounds from a sharp instrument or instruments. One of those persons was the brother of the applicant. The Crown was not able to establish that the applicant had anything in his hands at the relevant time and, in particular, that at any time he was seen to hold a knife or other cutting instrument. The murder weapon was never found. The Crown was unable to establish whether all the stab wounds had been caused by the same cutting instrument or by more than one and if so, how many. That problem was exacerbated by the fact that the fatal wound was delivered at some undetermined time during the course of a substantial brawl, albeit one which lasted only a couple of minutes. 14 There was evidence that the applicant had blood on one of his arms and on his shirt. There was nothing to link that blood to the deceased. The applicant had in fact suffered some cuts to his arm. 15 There were four other persons who also had blood on their bodies and on their clothing. The amount of blood on the clothing of at least two of those persons appears to have been greater than that on the applicant's clothing. 16 A problem for the Crown during the course of the trial was that the memory of some of the Crown witnesses had significantly deteriorated between the time of the accident and the time of trial. In some cases those witnesses could not remember or even confirm statements which they had made to the police at the time. One important witness refused to give evidence. Another important witness, a girlfriend of the applicant, had left the jurisdiction so that the Crown was only able to adduce evidence of part of an induced statement which she had made prior to her departure overseas. 17 These evidentiary problems increased the difficulties of the Crown in establishing its circumstantial case against the applicant where there was no direct evidence of the applicant ever carrying a knife or doing anything which was consistent with using a knife to stab the deceased. There was nothing in the applicant's actions following his departure from the nightclub which could properly be regarded as evidence of a consciousness of guilt so as to enable the jury to draw inferences which would overcome the evidentiary deficiencies in the Crown case. 18 At the close of the Crown case, I concluded that there was no evidence upon which a jury properly directed could convict. Accordingly, I directed the jury to enter verdicts of not guilty. A more detailed analysis of the facts is set out in R v El-Masri (No 2) [2010] NSWSC 1327. 19 Applying the approach of Simpson J in R v Johnston, it is clear that if a hypothetical prosecutor had been in possession of all of the evidence as it emerged at trial, it would have been unreasonable for that prosecutor to have instituted proceedings against the applicant. The difficulty for the DPP in this matter was that the evidence as adduced at trial simply could not have established the offences charged. 20 There was never an issue that there was any act or omission on the part of the applicant which contributed to the commencement of or continuation of the proceedings. In those circumstances, I propose to exercise my discretion in favour of the applicant and grant a certificate pursuant to s2 of the CCC Act.

Certificate under Suitors Fund Act 1951 21 Section 6A(1)(c) of the Act provides: 6A(1) Where on or after the day on which Her Majesty's assent to the Suitors' Fund (Amendment) Act 1959 is signified : … (c) the hearing of any… criminal proceedings is discontinued and a new trial ordered by the presiding judge … for a reason not attributable in any way to disagreement on the part of the jury, … or to the act, neglect or default, in the case of criminal proceedings, of the accused or the accused's counsel or attorney, and the presiding judge … grants a certificate (which certificate the presiding judge or magistrate is hereby authorised to grant): … (ii) in the case of criminal proceedings - to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to disagreement on the part of the jury or to the act, neglect or default of the accused or the accused's counsel or attorney, and … the accused in the criminal proceedings incurs additional costs (in this section referred to as additional costs) by reason of the new trial that is had as a consequence of the proceedings being so rendered abortive or as a consequence of the order for a new trial, as the case may be, then the Director General may, upon application, made in that behalf, authorise the payment from the Fund to the party or the accused or the appellant, as the case may be, of the costs (in this section referred to as original costs), or such part thereof as the Director General may determine, incurred by the party or the accused or the appellant, as the case may be, in the proceedings before they were so rendered abortive … or the hearing of the proceedings was so discontinued, as the case may be." 22 The trial in this matter commenced on 1 November when a jury was empanelled and the applicant placed in their charge. Shortly before the conclusion of proceedings on that day, the Court was advised that one of the jurors had gone to school with a person who was seated behind the Crown with persons who appeared to be relatives or friends of the deceased. The preliminary view of the Court, having made an inquiry of the jury, was that the trial should proceed. 23 The jury did not attend on 2 November. That day was spent by both the Crown and the defence in viewing video material and attempting to obtain agreement as to what parts of that material could be tendered by consent. On the afternoon of 2 November, the Court was advised by senior counsel for the applicant that having conferred with his client, an application would be made on 3 November to discharge the jury. 24 On the morning of 3 November the applicant, through his counsel, applied for a discharge of the jury on the basis of apprehended bias of that jury member who had gone to school with a person who was either a relative or friend of the deceased. It was submitted that this juror could not bring a fair and open mind to a consideration of the matters likely to emerge in the course of the trial. The application was opposed by the Crown. 25 Having heard submissions, I concluded that there was a real risk that a fair trial might not take place. I was also influenced by the fact that the trial had only just commenced and that it would be relatively easy to obtain a new jury panel. Accordingly, I discharged the jury. 26 Quite clearly the discharge of the jury was not due to any disagreement on their part, nor was it due to any act or default on the part of the accused or his legal advisers. There is nothing in what occurred which would justify me in refusing to exercise my discretion in favour of the applicant. Accordingly, I propose to issue a certificate under the Act. **********

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