R v Barakat; R v Younes (No 3)

1. [1]

   David Younes (“the accused) has pleaded not guilty to one count of being an accessory after the fact to the murder of Ali Jammas (“the deceased”) on 12 July 2013 at Abbotsbury. His co-accused Mahmoud Barakat (“Barakat”) is charged with the murder of Ali Jammas. I have summarised the Crown case as contained in the Crown case statement in my earlier decision in R v Barakat; R v Younes (No 1) [2016] NSWSC 1152.

2. [2]

   The Crown proposes to call the accused’s wife Jezelle Younes as a witness in the Crown case. Mr Chhabra of counsel appeared on behalf of Mrs Younes and objected, under s 18(1) of the Evidence Act 1995 (NSW), to her being compelled to give evidence against her husband. In order to uphold the objection, I would need to be satisfied, pursuant to s 18(6) of the Evidence Act 1995, that:

3. [3]

   Section 18(6) provides that:

4. [4]

   Mrs Younes has never provided police with a statement in this matter. Despite this, there are four pieces of evidence in the Crown case, namely one telephone call and three text messages, which are said to have emanated from Mrs Younes. These four pieces of evidence are as follows.

5. [5]

   First, on 29 August 2013 Senior Constable Michael Barnes was rostered on at Bankstown Police Station from 6am until 4pm. At around 2:45pm he answered a call from the switch and spoke to a female with a Middle Eastern accent who sounded to him to be 20 to 25 years of age. The woman said:

6. [6]

   Enquiries by police reveal that Mrs Younes was the subscriber of the telephone number from which the call was made.

7. [7]

   Second, at 6.34am on 14 September 2013, police lawfully intercepted an SMS from Mrs Younes to her husband, the accused. The text message read:

8. [8]

   “Macca” is the nickname of the accused Barakat.

9. [9]

   Third, at 2:25pm on 14 September 2013, Mrs Younes sent an SMS to the accused Barakat that was lawfully intercepted. The text message read,

10. [10]

    Fourth, at 5.15am on 24 October 2013, Mrs Younes sent another SMS to the accused Barakat that was lawfully intercepted. The text message read,

11. [11]

    A “Basha” inquiry was conducted in order to ascertain what evidence Mrs Younes could give if she was compelled to give evidence against her husband: see Basha v R (1989) 39 A Crim R 337.

The evidence of Mrs Younes

1. [12]

   Mrs Younes admitted that she had made the telephone call to police and sent the three text messages although she could not remember what she had said to police until she was shown a transcript of the call. She was questioned at length about the call and three text messages. The Crown Prosecutor was granted leave under s 38(1)(a) of the Evidence Act to ask leading questions of her. She repeatedly denied that she had ever had any conversation with her husband in which he had told her that Barakat was the shooter or otherwise involved in the murder. She said that she “didn’t even bother” asking her husband if he knew why police had taken the car, because they would end up arguing about it. Her husband would cut her off if she asked any questions, saying “I don’t know. Stop asking me, I don’t know”; their relationship was one in which they had learned to ignore things.

2. [13]

   Mrs Younes stated that she was heavily pregnant at the time of the call and text messages and eventually developed pre-eclampsia. The situation caused her a great deal of stress. She said that she becomes “crazy” and “a different [person]” when she is pregnant.

3. [14]

   Mrs Younes gave evidence that she used a “process of elimination” to lead her to assume that Barakat had the car at the relevant time, because everyone else who may have had the car was family. She did not nominate Barakat as the driver of the car with any input from her husband. Rather, she made the call to Bankstown Police Station set out at [5] above because she “hated” Barakat and wanted him “out of [her] life”. She knew that Barakat had been having an affair. He and her husband would frequently go out at night to party and not come back until the early hours of the morning.

4. [15]

   With respect to the text message set out at [9] above, Mrs Younes said that the words “otherwise I will take a different road” meant that she would tell Barakat’s wife about his girlfriend Elena Bakhos if Barakat did not stop spending time with her husband.

5. [16]

   In response to questions from Mr Chhabra, Mrs Younes stated that she and the accused have two young children and she is currently three months pregnant. The profits from her husband’s air-conditioning business pay the mortgage and cover the family’s expenses and lifestyle. Mrs Younes gave evidence that, if she were to be compelled to give evidence in the trial, it would “ruin her marriage”. She said that she and the accused were likely to divorce anyway because of the “pressure of the case”. The prospect of her giving evidence has placed a great deal of strain on their relationship.

6. [17]

   At several points during her evidence, Mrs Younes became visibly upset.

Submissions on behalf of the Crown

1. [18]

   The Crown Prosecutor indicated that the evidence of Mrs Younes would only be led in the case against the accused Younes and not the accused Barakat.

2. [19]

   The Crown Prosecutor accepted that there was evidence of a likelihood that harm might be caused to the relationship between Mrs Younes and her husband if she is compelled to give evidence. He focused his submissions on the balancing exercise I am required to undertake to establish that the nature and extent of that harm did not outweigh the desirability of Mrs Younes having to give the evidence.

3. [20]

   I raised with the Crown Prosecutor the question of whether, if I declined to compel Mrs Younes to give evidence, the four pieces of evidence referred to at [5]-[9] above would also be rendered inadmissible. The Crown Prosecutor indicated that he would not be adducing that evidence without the evidence of Mrs Younes to explain them.

4. [21]

   By reference to the five mandatory considerations in s 18(7) of the Evidence Act, the Crown Prosecutor indicated that Mrs Younes would not have to disclose any matter that was received by her in confidence from the defendant as, on her evidence, there was no discussion about whether the accused knew Barakat to be involved in the murder.

5. [22]

   On the question of the nature and gravity of the offence, the Crown Prosecutor properly conceded that the facts in support of the charge of being an accessory after the fact to murder showed that the alleged offence was at the low end of the range of objective seriousness encompassed by that offence. He also accepted that it as a relevant consideration that the penalty to be imposed may not be significant, given the range of appropriate sentences for that offence and the facts in this trial.

6. [23]

   As for whether there was reasonably available to the prosecutor any other evidence concerning the matters to which Mrs Younes could give evidence, the Crown Prosecutor indicated that, even if Mrs Younes were not compelled to give evidence and the four items of evidence set out above excluded by implication, there would still be sufficient evidence to proceed against the accused.

7. [24]

   Finally, as for the substance and importance of any evidence that Mrs Younes might give and the weight that is likely to be attached to it, the Crown Prosecutor agreed that there was other material in the brief that confirmed some of Mrs Younes’ explanations and nothing in the brief to put to her contrary to her evidence other than bare assertions she was not telling the truth.

8. [25]

   Mr Chhabra’s submissions were confined to the question of harm and the nature of the relationship between Mrs Younes and her husband. He relied in particular upon the fact that they would likely be divorced if she were compelled to give evidence in the trial of the accused.

Consideration

1. [26]

   Turning first to the question of harm, the test as set out in s 18(6)(a) of the Evidence Act is a low threshold: the question is whether there is a “likelihood” that harm ”might” either directly or indirectly come to Mrs Younes or her relationship. As Bellew J observed in R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592 at [78] –[80], although the word “likelihood” is a word with a similar meaning to “probable”, the qualification of that word with the word “might” in s 18(6)(1)(a) denotes a possibility rather than a probability. What is clear is that there is no requirement for me to find that harm is certain before the section is engaged.

2. [27]

   Although the application before me proceeded on the basis that the harm would be to the relationship, there is also a real question as to whether harm might also be caused to Mrs Younes herself. Although there was no medical evidence before me about this, Mrs Younes became very upset and seemed quite distraught at the thought of having to give evidence for the prosecution. In addition, she is currently pregnant with her third child and has two children aged three years and younger at home. Bellew J observed in R v Rogerson; R v McNamara (No 1) at [81]:

3. [28]

   As for the question of harm to the relationship, Buddin J observed in R v Flentjar (No 2) [2008] NSWSC 648 at [4]:

4. [29]

   Although I accept that, in principle, the potential for harm exists even if no particular harm can be identified, in this case particular harm was identified by Mrs Younes as the summary of her evidence above at [15] indicates.

5. [30]

   I am satisfied that there is a likelihood that harm might be caused both to Mrs Younes and to her relationship with her husband if she were compelled to give evidence against him. Being so satisfied, my consideration turns to the balancing exercise in s 18(6)(b). By reference to the mandatory considerations set out in s 18(7), I am satisfied that the nature and extent of that harm outweighs the desirability of Mrs Younes’ giving evidence. I have reached that conclusion based on the following considerations.

6. [31]

   First, although the offence charged is one of being an accessory after the fact to murder carrying a maximum penalty of 25 years’ imprisonment, the criminality alleged falls towards the lower end of the scale of objective seriousness for conduct encompassed by that offence. The Crown case as to the assistance provided to Barakat by the accused relies solely on the accused’s failure to nominate the accused Barakat as the driver of his vehicle at the time of the shooting when requested to provide the name of the driver. As RA Hulme J recently observed in R v Stanford, Marcus [2016] NSWSC 1174

7. [32]

   The murder of the deceased is a very serious offence. It involves the intentional taking of a life and carries life imprisonment. The accused is not charged with murder. Nor does the Crown submit that the evidence of Mrs Younes is presently admissible as against the accused Barakat. The “nature and gravity” of the offence in relation to which Mrs Younes is being required to give evidence against her husband is significantly less serious by comparison. This factor favours not compelling Mrs Younes to give evidence.

8. [33]

   Second, the importance of her evidence should not be overstated. The police evidence regarding the telephone call Mrs Younes made and text messages she sent are, at face value, consistent with her having some knowledge that Mr Barakat was involved in the murder. Despite this, her actual evidence provides an explanation that weakens the Crown case on that issue. The Crown Prosecutor conceded that there is other independent material in the brief to support the explanation given by Mrs Younes. I take that to mean that her explanation for her threats to Mr Barakat concerned telling his wife of his affair, rather than telling police of his involvement in the murder, is supported by other evidence in the Crown case.

9. [34]

   Mrs Younes’ disapproval of that “affair” was made clear throughout her evidence at various stages. Evidence is proposed to be led in the Crown case that Barakat had an extramarital relationship with Elena Bakhos at the time of the offence. It is proposed that Ms Bakhos will give evidence in the Crown case. There is also evidence in the Crown case that the accused met with Barakat and Ms Bakhos on a number of occasions during this time. Mrs Younes also gave evidence that she was heavily pregnant at the time of the call and text messages and that her hormones were affecting her state of mind. She described herself as being “psycho” during that time. The uncontradicted evidence before me is that two of the relevant text messages were sent on 14 September 2013 and she gave birth four days later on 18 September 2013. She gave evidence that she had met Barakat’s wife and seen him with his children.

10. [35]

    One might be tempted to be sceptical of Mrs Younes’ convenient explanations for the call and text messages. She appeared anxious to assist her husband throughout her evidence. Despite this, there is other evidence in the Crown case that lends support for her version of events. As such, it could not be said that the jury would place no weight on her evidence in these circumstances. Her evidence is relevant to the interpretation of the call made by her to police and the three text messages sent by her. As such, if her evidence is accepted the Crown case is weakened. If her evidence is rejected the Crown case is strengthened.

11. [36]

    The Crown Prosecutor indicated that, should I conclude that Mrs Younes should not be compelled to give evidence, then the Crown would not adduce evidence as to the telephone call to police and three text messages sent by Mrs Younes.

12. [37]

    Turning to whether there is other available evidence concerning the matters of which Mrs Younes could give evidence, I was informed by the Crown Prosecutor that there is other evidence to prove knowledge on the part of the accused Younes besides that of his wife. Given that this application has been made prior to the commencement of the trial, my only knowledge of what that evidence is comes from the Crown case statement. In that document, it is asserted that the Crown will rely upon surveillance, telephone intercepts, CCRS and RCCRs, and CCTV footage. There is also evidence of a lawfully recorded conversation between Barakat and the accused in a police cell after they were arrested. I have not been provided with that evidence and hence am unable to conclude whether it is sufficient to establish knowledge on the part of the accused of all of the elements of the offence and of Barakat’s involvement. Nonetheless, it is the submission of the Crown Prosecutor that the remaining evidence is capable of so doing.

13. [38]

    Turning finally to the question of the nature of the relationship between Mrs Younes and her husband, it does appear to be a fraught one that is marked by periods of discord and separation. For instance, at the time of the execution of the search warrant upon the premises of the Younes family on 6 August 2013, Mrs Younes was staying with her parents. She explained that this was because she was in the late stages of pregnancy and had been bleeding and, if there was a fight, she chose to walk away from it. However, Mrs Younes also stated that they have been together for a long time and have been through a lot. They have “worked together to get where [they] are.” They have two children and are expecting another.

14. [39]

    As for s 18(7)(e), the Crown Prosecutor indicated that Mrs Younes would not have to disclose any matter that was received by her in confidence from the accused as, on her evidence, there was no discussion about whether he knew Barakat to be involved in the murder.

15. [40]

    The factors I am to take into account in undertaking the balancing exercise are not confined to those in s 18(6) of the Evidence Act. However, no other matters were drawn to my attention by either the Crown Prosecutor or Mr Chhabra.

16. [41]

    Parliament has seen fit in enacting s 18 of the Evidence Act to require courts to undertake an important balancing exercise. I have taken into account all of the matters in s 18(7). I have also taken into account the fact that Mrs Younes is currently pregnant with her third child. She was demonstrably emotional and upset at various times throughout giving her evidence and appeared fearful at times as well. Taking all of these matters into account, I do not propose to compel her to give evidence.

17. [42]

    I make the following orders:

    1. (1)

       The objection made under s 18(2) of the Evidence Act 1995 (NSW) by Jezelle Younes is upheld.

    2. (2)

       Pursuant to s 18(6) of the Evidence Act I order that Jezelle Younes must not be required to give evidence at the trial of the accused Younes and Barakat.