Regina v Saleh Khodr

CATCHWORDS: Criminal law - Application for separate trial - Danger of unfair prejudice - Positive injustice - Evidence against co-accused highly prejudicial to applicant - Directions to jury

Regina v Baartman unreported NSWCCA 6 October 1994 Regina v Middis unreported NSWSC 27 March 1991 CASES CITED: Regina v Ngoc Pham [2004] NSWCCA 190 Gilbert v The Queen (2000) 201 CLR 414 Webb and Hay v The Queen (1993) 181 CLR 41

PARTIES: Regina Saleh Khodr

COUNSEL: Mr Calvert for the Crown Dr Webb for Saleh Khodr

SOLICITORS: Ms Flemming for the NSW DPP Mr Rahme for Saleh Khodr

This is a judgment on a separate trial application made by the accused Saleh Khodr. Dr Webb, who appears for the accused Saleh Khodr, has made an application for a separate trial of his client. I will return to the evidence and submissions which he puts forward to support his application.

I turn first to a brief description of the Crown case. Both accused are charged with an offence I will shortly call riot with an alternative of affray. In addition both accused face three more charges, two of those charges are assault occasioning actually bodily harm. Each offence is alleged to involve a separate individual, and the third charge jointly faced by both accused is an offence of maliciously inflict grievous bodily harm in respect of a third individual.

The circumstances of the allegations arise from events which occurred on 30 January 2005. Very briefly the Crown case is that on the late evening of that day there was a riot in the streets of Auburn. The riot on the Crown case was brought about by a group of people attacking another group of people. There will be evidence in the Crown case that the attacking group belonged to a sect of the Islamic faith known as Sunnis and that the attacked group belonged to another sect known as Shi'ites. The Crown case is that both accused were involved in the riot and the assaults occurred during the course of the riot.

The Crown Prosecutor pointed out to me that so far as the applicant Mr Khodr is concerned, the Crown case is that he was involved in a joint criminal enterprise with his co-accused Amir El Mostafa and the other people who took part in the event. Mr Khodr was not, on the Crown case, an incidental passer-by. There is in the Crown case no separate evidence regarding any background motive on the part of Mr Khodr which may stem from his political or religious leanings.

I should add at this point by way of background that the context, on the Crown case, of the events is some tension between those two sects of the Islamic faith and two aspects of that tension are religious division and political division.

Returning to the Crown case against Mr Khodr the Crown Prosecutor pointed out that there was no particular background motive alleged against Mr Khodr, but an allegation that he partook in the activity and pointed out a particular individual, Mr Al Shemmari, with words along the lines of "He's the one" and after that Mr Al Shemmari was assaulted.

Mr Al Shemmari is the only witness in the Crown case who identifies Mr Khodr. There will be evidence that Mr Al Shemmari knew Mr Khodr by sight before these events and that he indicated to the police after these events, by reference to a photograph, the identity of this accused. That is the only form of identification evidence against this accused.

The Crown case is that the accused Amir El Mostafa was the organiser or central person involved in these events but that there was a joint criminal enterprise between the two accused and the other aggressors in the events. There will be no evidence against Mr Khodr that he was a leader or instigator, but as I said, the evidence against Mr Khodr is that his particular role is significant in that he pointed out Mr Al Shemmari as a victim of an assault.

I should add here that the identification evidence so far as the co-accused Mr El Mostafa is concerned is sourced to six individuals who saw him at the scene and who selected him by way of a photograph indicated to the police.

There was tendered on the application VDEM 27 which was evidence concerning a demonstration which occurred on the day that Iraqis living in Australia were voting in an election held in Iraq, and that evidence briefly points to the co-accused Mr El Mostafa or at least a photograph which appears to depict the co-accused Mr El Mostafa, demonstrating against those elections. There is other evidence concerning that day as well.

There was also tendered Mr Khodr's record of interview in which he claimed that he was innocently drawn into the events of that day. There was also tendered evidence that has been referred to in these interlocutory proceedings as a pre-riot fracas, that is a fight which occurred between the accused Amir El Mostafa and two young men earlier on the day of the events. The statement contains an allegation that Mr El Mostafa said to these two young men who were Shi'ites (and I add here that Mr El Mostafa and Mr Khodr are Sunni Muslims) words to the effect of: "You're sons of dogs, sons of bitches, we don't accept you. You are not voting for yourself, you are voting for the USA. If you vote you will die."

In addition it is alleged that he said: "If you kill a Shiah you will go to heaven." There was an altercation after which it is alleged that Mr El Mostafa left the scene saying: "I will show all you Shiah, you will see, I will be back tonight."

It is part of the Crown case that this pre-riot fracas indicated a motive for Mr El Mostafa to return and participate in the riot, namely some form of revenge for the events which occurred during the fracas. It is also alleged by the Crown that another motive concerned Mr El Mostafa's expressed political and religious differences with the Shi'ite sect. In addition there were tendered evidence of transcriptions of telephone calls which were recorded and which involved Mr El Mostafa.

Dr Webb, on behalf of his client, indicated that his client's defence was essentially one of innocent association and that the case he faced was essentially an identification case which was based upon identification evidence to be called from Mr Al Shemmari. He contrasted that with the case against Mr El Mostafa where there were six identifying witnesses.

He argued that the two significant pieces of evidence which will be prejudicial to his client in a joint trial were evidence of the pre-riot fracas and evidence of the polling booth demonstration. He also referred, although not in detail, evidence of the telephone calls and to evidence of the fact that the co-accused El Mostafa was older than his client.

By reference to the principles according to which separate trial applications are to be determined Dr Webb argued that his client faced the danger of unfair prejudice. The principles, as he said and I accept, were set out by Hunt J (as his Honour then was) in Regina v Middis, unreported NSWSC 27 March 1991 and approved by the Court of Criminal Appeal in Regina v Baartman, unreported NSWCCA 6 October 1994. It was also referred to with approval but with some additional comment in Regina v Ngoc Pham [2004] NSWCCA 190.

Dr Webb referred to the polling booth evidence with its political flavour and the pre-riot fracas with its flavour of introductory violence that day which were the main pieces of evidence which he said were prejudicial to his client. In addition he argued that at least one of the sections under which his client was charged, namely s 93B of the Crimes Act 1900 speaks of a common purpose whereas the charge in respect of affray, the alternative to riot, which is the subject of s 93C, does not speak of common purpose.

Of course Dr Webb was right in that s 93B provides in part that where twelve or more persons who are present together use or threaten unlawful violence for a common purpose, an offence may result. The issue of common purpose and prejudice, pertaining to that aspect of the argument of Dr Webb, is of particular relevance to the lead charge namely riot, and particularly to the extent or otherwise to which the material would otherwise be not admissible against his client. His submission is that the jury may enlarge or enhance the common purpose as a form of unfair prejudice constituting a positive injustice, a positive injustice being a requirement of the principles for the consideration of separate trial applications.

Dr Webb emphasised that it is common ground that the only evidence against his client springs from evidence of the events of the alleged riot rather than any evidence which preceded those events. The evidence of what Mr Khodr thought, planned, did or did not do is referable only to what Dr Webb called the res gestae. He pointed to at least two aspects of positive injustice. The first injustice is by an unfair prejudice that the material before the jury on a joint basis would run a real risk of strengthening the identification made by Mr Al Shemmari on the basis that they were run together. The second positive injustice was that one may flow through to another, that is the charges in the common purpose or the content of that prejudice could quite naturally, in the mind of the jury, flow from one charge to another. In addition he argued that there would be, despite any directions that I give, a risk that the jury would use the evidence notwithstanding such strong directions, particularly in the context of the common purpose case which the Crown must present.

When I asked whether in a trial against his client alone the Crown would be entitled to bring evidence not of the pre-riot fracas nor of the polling booth demonstration but contextual evidence regarding the background to the riot, Dr Webb agreed that his client would have to face such general evidence concerning the background and circumstances of the alleged riot.

As I said the principles have been restated in Pham's case. The basis for a joint trial being appropriate was set out in the judgment of Toohey J with whom Mason CJ and McHugh J agreed in Webb and Hay v The Queen (1993) 181 CLR 41 at 88 to 89. There His Honour said: " I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are, of course, dangers for an accused in a joint trial by reason of the admission of the evidence which would not be admitted at the trial of one accused. That risk must be obviated by expressing careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused ."

I make two observations about that. The first is that I have omitted the references to authority, the second is that in this case the Crown Prosecutor argued that there were good reasons for a joint trial in this case, namely a lot of witnesses so far as their convenience was concerned and the importance of avoiding inconsistent verdicts.

In Pham, Adams J referred to the passage in the judgment of McHugh J in Gilbert v The Queen (2000) 201 CLR 414 at 425 where his Honour said: " The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint word of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. "

His Honour said at the same page: " Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. "

This is a case in which both accused are alleged to be involved in a common purpose in committing various offences. As it happens the identification evidence in respect of one accused comes from one witness who had some familiarity with that accused, who is the applicant for this separate trial. The identification evidence in respect of the other accused comes from six witnesses.There is against the co-accused additional evidence by way of background to his motivation, namely political and religious considerations.

A preliminary question is whether the evidence of the political and religious motivations and the pre-riot violence (arguably now admissible if I ruled against the co-accused) would be highly prejudicial to the applicant, Mr Khodr. This must be seen as Adams J said in the context that there would be from me clear and emphatic directions given to the jury about inadmissible material being ignored so far as Mr Khodr is concerned. As the Crown Prosecutor pointed out, once the material about the pre-riot fracas and the polling booth demonstration is admitted against Mr El Mostafa it must be accompanied at the time by a clear direction from me that it is not admissible against the applicant, Mr Khodr. In addition I will give strong and clear directions during the course of my summing-up about the admissibility of that evidence in respect of one accused but not Mr Khodr. As the authorities say, the justice system acts upon the assumption that juries will adhere to and follow those instructions.

There is a sense in which this evidence, incriminatory of the co-accused Mr El Mostafa, as a matter of common sense does not involve Mr Khodr. There is no suggestion or evidence in his record of interview that he was present at either event. He said merely that he knew of the elections. He may have made reference to the demonstration but there is no suggestion that Mr Khodr himself was involved either in any election demonstration nor was he involved in the pre-riot fracas. It is, as I say, obvious from the content of the evidence itself that it does not incriminate Mr Khodr.

In my opinion the combination of that obvious aspect of the evidence together with clear directions from me will mean that any prejudice against Mr Khodr will be significantly reduced. In my opinion the desirability of this being a joint trial is high for the reasons set out by the High Court in Webb and Hay.

In my opinion there is no risk of the positive injustices suggested by Dr Webb, given the nature of the evidence against the co-accused and the directions which I will give both at the time that that evidence is admitted and during my summing-up. Accordingly the application is rejected. oOo

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