R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 7)

HIS HONOUR: The two murder accused, Azam and Haysem Charbaji (also referred to as “the Charbaji brothers”) have applied for the Court to discharge the jury under its discretion so to do to prevent a mistrial or an unfair trial. There would then need to be a second hearing, at least in relation to the Charbaji brothers.

I refused that application, ex tempore, and reserved reasons. It was the original intention to provide full reasons but, given the passage of time, consider that these reasons will suffice and should be published without elaboration.

The basis for the application is the Crown address to the jury on the evidence adduced in the trial. It is necessary to give some background.

Azam and Haysem Charbaji are brothers. Each is charged with murder. Also on trial is Lexy Jamieson, who was charged with accessory.

During the proceedings, evidence from CL and also recordings of Ms Jamieson were admitted only against Ms Jamieson. In the course of her address, the Crown Prosecutor relied on the statements of Ms Jamieson and the evidence of CL in the case against Azam and Haysem Charbaji.

This was done in a number of ways which included using statements of Ms Jamieson, admitted only against her, to inculpate the Charbaji brothers and using the statements of Ms Jamieson and the evidence of CL to corroborate the evidence of Mr Gallo.

Mr Gallo was a witness called in all three cases and whose evidence was admitted against each accused. He was a person involved, on his version peripherally, in the criminal conduct.

Mr Gallo was the subject of significant cross-examination as to credit. If Mr Gallo were not to be believed or accepted, by the jury, the case against the Charbaji brothers becomes much weaker. I will be giving a direction that if Mr Gallo is not accepted beyond reasonable doubt the jury would be required to acquit all three of the accused.

The applications to discharge, as against the Charbaji brothers is, as earlier stated, on the basis that the unfairness to the accused will result either in a mistrial or more accurately, a miscarriage of justice. Further, the accused submit that the damage has been done and a correction by the Crown or by the Court will not eliminate the miscarriage.

The Court has enquired of the Crown, who opposes the application, as to whether she would correct these issues herself. The Crown prefers for the Court so to do.

The alternative to a complete discharge is to continue the trial as against Ms Jamieson and order a new trial for the two other accused. In my view, if the trial cannot be salvaged against all of the accused, it would be inappropriate to continue against only Ms Jamieson.

The reason it would be inappropriate is that the Court would need to explain to the jury why the proceedings were to continue in that way. Such an explanation would, almost of necessity, involve a criticism of the Crown, while the absence of an explanation would invite the jury to conjecture as to the reasons the Charbaji brothers were no longer before them.

Absent an explanation, the jury would most probably assume either that one or other has changed his plea or that the Crown no longer considers them guilty. As a consequence, an explanation would be necessary and, in my view, prejudice either the Crown or the accused, Ms Jamieson.

Ultimately, the Court is required to exercise its discretion as to the course to take. That discretion must be exercised judicially, bearing in mind my fundamental task to ensure a fair trial.

If I were of the opinion that an appropriate direction from the Court could not be framed so as to undo the damage occasioned by the Crown address, I would discharge the jury. Inconvenience cannot supplant or overtake the necessity to avoid a miscarriage or irremediable prejudice to the accused.

The accused are also concerned that any criticism of the Crown would be prejudicial to their clients. I will avoid any such criticism.

Nevertheless, having given it some thought, I am of the view that an appropriate direction can issue that will overcome any prejudice. The direction will be on the record as are the terms of the Crown address. It is unnecessary to recite either of them.

The matters that I have taken into account include: my preliminary view as to the form of the direction or correction; the preliminary view formed as to the direction on Mr Gallo’s evidence; the view I have formed that, ultimately, I will be seeking that the jury ignore the evidence of CL totally; and, lastly but in some ways importantly, my perception of the attitude of the jury both to the proceedings and to directions from the Court.

If I am wrong about the foregoing, and on appeal, others form a different view, I am comforted by the fact that this direction does not cause the accused to miss an opportunity to obtain an acquittal. While I accept that may not be likely on the evidence admitted, the waste of time occasioned by such a course is miniscule, confined as it is to the addresses of counsel for the accused and my summing-up.

The application for discharge of the jury is refused.