R v Karimi; R v Khoury; R v Mir

Supreme Court of NSW|2013-02-28|Before: Johnson J

Judgment 1JOHNSON J: By Notice of Motion filed 27 February 2013, the Accused, Mohammad Jawad Karimi ("Karimi"), makes application for severance of four counts from the indictment and seeks a separate trial with respect to those four counts. 2An amended indictment presented on 28 February 2013 charges Karimi and others with the following offences: (a) Count 1 - John Khoury ("Khoury") and Karimi - on 29 June 2010 at Villawood, conspiring amongst themselves and others to rob Ernesto Bertolli whilst armed with a dangerous weapon, a shortened firearm. (b) Count 2 - Khoury and Karimi - on 29 June 2010 at Ashcroft, breaking and entering a dwelling house and committing a serious indictable offence therein, larceny of a laptop computer and a plastic container, in circumstances of special aggravation, namely at the time of the offence, wounding James Stiff. (c) Count 3 - In the alternative to Count 2 - Khoury and Karimi - on 29 June 2010 at Ashcroft, being armed with an offensive weapon, a machete, robbing James Stiff of a laptop computer and a plastic container and, at the time of the offence, wounding James Stiff. (d) Count 4 - Khoury only - on 1 July 2010 at Chester Hill, recruiting Tomasi Natuba to carry out a criminal activity, namely robbery whilst armed with an offensive weapon. (e) Count 5 - Khoury, Karimi and Mahdi Mir ("Mir") - on 1 July 2010 at Warwick Farm, being armed with an offensive weapon, a meat cleaver, robbing Maxine Rogers of a mobile phone and laptop computer. (f) Count 6 - Khoury, Karimi and Mir - on or about 1 July 2010 at Lurnea, murdering Kesley Burgess. (g) Count 7 - in the alternative to Count 6 with respect to Khoury only - on or about 3 July 2010, knowing the persons to have committed the murder of Kesley Burgess, receiving, harbouring, maintaining and assisting those persons known to him. (h) Count 8 - Khoury, Karimi and Mir - on 1 July 2010 at Lurnea, being armed with an offensive weapon, a meat cleaver, robbing Tracey Burgess of a handbag. (i) Count 9 - Khoury and Karimi - on or about 3 July 2010, conspiring amongst themselves and other persons to murder an unknown person. (j) Count 10 - in the alternative to Count 9 with respect to Karimi only - on 4 July 2010 at Miller, while in company of other persons, possessing an offensive weapon, a shortened .22 calibre long rifle, with intent to commit an indictable offence, affray. (k) Count 11 - Karimi only - on 4 July 2010 at Miller, possessing a firearm, a shortened .22 calibre long rifle, without being authorised to do so by a licence or permit. (l) Count 12 - Khoury only - between 29 June 2010 and 4 July 2010 at Villawood, possessing a firearm, a shortened .22 calibre long rifle, without being authorised to do so by a licence of permit. 3The severance application made by counsel for Karimi relates to Counts 1, 9, 10 and 11. No severance or separate trial application has been made by the co-accused, Khoury and Mir. 4Mr Wasilenia, counsel for Karimi, accepted that it was the Crown's prerogative to present an indictment where a number of offences have been alleged to have been committed by two or more accused if the offences form or are part of a series of offences of the same or a similar character. He emphasised that this is subject to a Judge's discretion to order that the proceedings not be heard together under s.29(3) Criminal Procedure Act 1986.

Section 29 Criminal Procedure Act 1986 5Section 29 is in the following terms: "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." 6It is important to bear in mind that the interests of justice in s.29(3) involve more than the interests of an accused person, and that the interests of the Crown, the witnesses and the public must also be considered: Osman v R [2006] NSWCCA 196 at [22]. 7Submissions were directed to the terms of s.29(1)(b) and (c) and the discretionary provision contained in s.29(3) of the Act. 8The Crown submitted that the offences charged against Karimi arise out of the same set of circumstances or that they form, or are part of, a series of offences of the same or a similar character. 9In support of the application, Mr Wasilenia sought to contrast aspects of Counts 1, 9, 10 and 11 with other counts in the amended indictment. He submitted, in any event, that the Court should be of the opinion that Counts 1, 9, 10 and 11 ought be heard and determined separately in the interests of justice.

The Crown Case 10Submissions were made by reference to the Crown Case Statement dated 1 August 2012. 11It is the Crown case that the Accused Khoury planned to shut down drug dealers within the Liverpool, Warwick Farm and Villawood areas by committing home invasions to take their drugs. For this purpose, the Crown alleges that associates of Khoury (including Karimi) were involved in these activities, together with other persons who were recruited for that purpose. The Accused Mir is alleged to have become involved in these criminal activities on 1 July 2010. 12Counts 2, 3, 4, 5, 6, 7 and 8 relate directly to the carrying out of home invasions for the purpose of obtaining drugs and money. 13With respect to Count 1, the Crown alleges that Khoury and Karimi and others conspired to commit an armed robbery by way of a home invasion for the purpose of obtaining a firearm desired by Khoury. To this end, the Crown alleges that a number of persons who were involved in the later home invasions entered premises at Lakemba, although not succeeding in obtaining the relevant firearm. 14Counts 9, 10 and 11 are not alleged by the Crown to involve a home invasion. Rather, the Crown alleges that some members of the same group who had planned or undertaken home invasions became involved in a proposed confrontation with persons. Count 9 is an allegation that Khoury, Karimi and others conspired to murder an unknown person in this context. 15Evidence to be adduced by the Crown in support of Counts 9, 10 and 11 includes telephone intercept evidence, and evidence of persons said to have been involved in this activity, including Anaterea Tamapua ("Tamapua"). The Crown alleges that telephone intercepts record Karimi and Khoury planning such a confrontation with mention made in recorded conversations (involving Karimi) that firearms and "choppers" were required. 16It is the Crown case that on 4 July 2010, within hours of these conversations, police stopped a Ford Laser vehicle at Miller in which four persons, including Karimi and Tamapua, were seated. Karimi was seated in the rear of the vehicle next to Richard Vergara ("Vergara"). The Crown alleges that a search of the vehicle revealed a black-handled machete in the rear offside foot well where Vergara was seated, together with a purple bag containing a shortened .22 calibre long rifle, which was loaded and in working order with one round of ammunition in the breach, on the rear seat between Karimi and Vergara. 17The Crown anticipates that Tamapua will give evidence that the machete was the one used by Vergara to wound James Stiff in the Ashcroft offences (Counts 2 and 3) and the firearm had been stored at the Villawood compound where Khoury lived. Tamapua also states that Karimi had told him that he had already loaded the firearm. 18The Crown contends that the machete is consistent with the weapon described by members of the Stiff family as being used against them in the Ashcroft offences. Further, and importantly, subsequent analysis of the stained area on the tip of the blade of the machete identified a partial DNA profile from blood that matches the DNA profile of James Stiff. 19The shortened .22 calibre long rifle was subsequently analysed. DNA was recovered from the trigger area of the firearm that originates from at least two individuals. The Crown alleges that Khoury has the same profile as the major component of the DNA mixture. 20Also located in Karimi's clothing following the stopping of the Ford Laser vehicle was a mobile phone used in various conversations which had been intercepted on 3 and 4 July 2010.

Submissions on Application 21Written submissions were furnished by counsel for Karimi and the Crown for the purpose of this application. Those submissions are on file and it is not necessary to recite them in detail in this judgment. 22Put shortly, Mr Wasilenia submitted that: (a) the conspiracy charges contained in Counts 1 and 9 involved a different subject matter to the other charges (not being allegations of planned home invasions to obtain drugs or money); (b) the nature of directions to be given to a jury with respect to the conspiracy charges in Counts 1 and 9 would be different to directions concerning other charges (involving joint criminal enterprise), so that complex and potentially confusing directions would be given to the jury with respect to the different classes of offences charged; (c) whilst acknowledging that the location of the firearm and machete in the Ford Laser vehicle would be admissible in the trial for other counts (including Counts 2 and 3), this evidence could be adduced without Counts 9, 10 and 11 being joined, the latter course involving allegations of serious crimes against Karimi which were not otherwise related to the remaining charges; (d) it was necessary to keep in mind the charge of murder contained in Count 6 which involves an allegation that Kesley Burgess was murdered by use of meat cleavers in the course of a home invasion, a scenario which it was submitted was likely to arouse hostility, strong emotions or excite revulsion; (e) the Crown evidence in support of Counts 1, 9, 10 and 11 is not admissible with respect to the other counts - this was an attempt to adduce tendency or propensity evidence in circumstances where the Crown had not given notice of an intention to lead such evidence; (f) substantial prejudice would result to Karimi if the trial proceeded upon all counts contained in the amended indictment. 23The Crown pointed to the interrelationship between the machete and firearm located in the Ford Laser vehicle and earlier offences, together with the conversations involving Karimi and others which preceded the stopping of the vehicle, which were capable of linking Karimi and others to these items and thus to other offences charged on the indictment. Likewise, the location of the mobile phone on Karimi provided an evidentiary link to relevant calls. 24The Crown submitted that the telephone intercepts concerning Counts 9, 10 and 11 were capable of establishing that Karimi was aware that the group had access to a firearm and other weapons and that members of the group were prepared to use the weapons. This was said to be relevant to the Crown demonstrating with respect to Counts 2 and 3, that Karimi contemplated the wounding of a person as a possible incident in the execution of the Ashcroft home invasion and, with respect to Count 6, the Crown establishing that Karimi contemplated infliction of grievous bodily harm to a person as a possible incident in the execution of the Lurnea home invasion. 25The Crown contended that these matters did not involve an attempt to rely upon tendency or propensity evidence. 26With respect to Count 1, the Crown submitted that this involved a conspiracy to commit an armed home invasion involving the same personnel who carried out the Ashcroft home invasion later that evening, having available to them the .22 shortened firearm and machete later found in the Ford Laser vehicle with Karimi and others on 4 July 2010. 27The Crown submitted that the provisions in s.29(1) Criminal Procedure Act 1986 had been satisfied and that the Court should not form the opinion, for the purposes of s.29(3), that Counts 1, 9, 10 and 11 ought be heard and determined separately in the interests of justice.

Determination 28I am satisfied that Count 1 satisfies the requirements of s.29(1)(b) and (c) Criminal Procedure Act 1986. This count involves an alleged home invasion involving the same group of home invaders as participated in the Ashcroft offences alleged to have occurred later on 29 June 2010 (Counts 2 and 3). The fact that the suggested motive for this offence was to obtain a firearm, rather than drugs and money, does not materially affect the position. This was the first in a series of alleged offences which were of the same or a similar character. 29The fact that Count 1 involves a charge of conspiracy, and thus the need for directions relevant to that count, does not materially assist Karimi on this application. It will be for the Court to direct the jury in this respect. I am not of the opinion that Count 1 ought be heard and determined separately in the interests of justice. 30Counts 9, 10 and 11 do not involve allegations of planned or performed home invasions. However, on the Crown case, there are inextricable links between persons involved in other offences contained in the amended indictment and items utilised in those earlier offences. The Crown alleges that the .22 shortened firearm and machete located in the Ford Laser on 4 July 2010 were weapons available at the time of the offence contained in Count 1, and that the machete was utilised in the Ashcroft offences (contained in Counts 2 and 3). Telephone intercepts late on the evening of 3 July 2010 record Karimi discussing with others the provision of firearms and "choppers" in the hours before the stopping of the vehicle on 4 July 2010. 31Counsel for Karimi concedes that evidence of the location of the .22 shortened firearm and the machete in the vehicle, in the presence of Karimi and others, would be admissible with respect to other counts in the amended indictment. 32In circumstances where, within a period of days, it is alleged that persons were involved in planned criminal activities involving the use of weapons, including the .22 shortened firearm and the machete, and that there are links between these persons and weapons, I am satisfied that it can be said that the offences arise out of the same set of circumstances or are part of a series of offences of the same or a similar character. The linkage between persons and items and the readiness of members of the group, on the Crown case, to utilise these weapons are factors pertinent to this conclusion. 33I do not consider that the Crown case is appropriately characterised as involving an attempt to rely upon tendency or propensity evidence. On the Crown case, there are direct links between persons, items and offences. Further, the evidence concerning the .22 shortened firearm and machete and their availability and use at the times of Counts 2, 3 and 6, are capable of bearing upon the state of mind of Karimi with respect to those counts. 34I am satisfied that the requirements of s.29(1) have been met with respect to Counts 9, 10 and 11. I am not persuaded that the interests of justice require that these counts be heard and determined separately. The jury will be directed concerning the use of evidence adduced at the trial, by reference to the elements of the various offences charged in the amended indictment. I accept that the subject matter of Count 6 is capable of arousing strong emotions, however the jury will be given appropriate directions in that respect. 35In circumstances where, subject to any further area of objection, the evidence relevant to Counts 9, 10 and 11 will be before the jury for purposes which, in one way or another, relate to the proof of earlier counts, then the interests of justice will not be compromised by Karimi standing trial at the same time for the offences charged in Counts 9, 10 and 11. 36I refused the application to sever Counts 1, 9, 10 and 11 in respect of the Accused Karimi. 37The Notice of Motion is dismissed.

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: 04 October 2013

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