R v Jaghbir (No 2)

Ahmed Jaghbir is charged that between 2 and 10 March 2017 he procured and counselled unknown persons to commit a serious indictable offence, namely, murder Kemel Barakat on 10 March 2017.

The matter is fixed for trial before me to commence on 7 September 2020. The trial had previously been fixed on 12 July 2019 by Fullerton J in the Arraignments List for hearing before me on 16 March 2020. On 2 March 2020 it became necessary to vacate the trial. That was for a variety of reasons. First, on the previous weekend an article in the Sunday Telegraph reported on a person who was due to give evidence at the trial in a manner that was said to be prejudicial to the position of the accused. Secondly, the Crown made a very late application under s 45 of the Crime Commission Act 2012 (NSW) in respect of the examinations of two persons before the Crime Commission. Thirdly, the parties had agreed that there would need to be Basha enquiries in relation to four witnesses which were likely to take some three to four days out of the period set aside for the trial. Finally, senior counsel for the accused had serious health issues which might have impeded the uninterrupted conduct of the trial, especially in the light of the COVID19 pandemic.

The accused was granted leave at that directions hearing to file in Court a notice of motion seeking that the trial be a judge-alone trial pursuant to s 132 of the Criminal Procedure Act 1986 (NSW). In the light of the fact that the trial date of 16 March 2020 was vacated, it was agreed that the notice of motion could itself be adjourned until after the completion of the pre-trial issues including, particularly, the application under s 45 of the Crime Commission Act.

The hearing of the accused’s notice of motion for a judge-alone trial took place on 16 July 2020. At the conclusion of the hearing on that day, I indicated that I would order that the trial be conducted by judge alone and that I would provide my reasons at a later time. These are my reasons for making that order.

The accused relied on two affidavits of his instructing solicitor, Mahmoud Abbas, sworn 28 February 2020 and 1 July 2020. The material in both of those affidavits concerned material, said to be prejudicial, which had appeared in newspapers at various times between 2016 and the present. The newspaper articles included information about the killing of the deceased and various persons the deceased was said to be involved with, and the charges and trials of various underworld figures who might be mentioned in the present trial. The articles referred to in the second affidavit were published in newspapers in 2020. They did not refer to the accused and, with one exception, did not refer to the deceased. They were all articles concerning convictions and sentences for persons peripherally involved with other persons who might be mentioned in the present trial or who might give evidence in the present trial.

The matter was put this way by Mr James QC for the accused. The persons named in the articles had been convicted of very serious offences including offences of violence, murder and substantial drug trafficking. The Crown in the present case was seeking to rely on the fact that the accused had some contact with the milieu in which those persons moved, even if he did not have contact with individual persons. In particular the deceased’s girlfriend, Ms Hage, had contact with some of those persons and, in particular, Mustapha (also spelt Mostafa) Dib.

Mr James submitted that the Crown case was a circumstantial one, and that a jury confronted with that material could not but speculate as to the possible links between the accused and various persons who might have had some motive to kill the deceased or to procure others to do so. Mr James submitted that, with that material available, it would be too difficult to get a jury to reach a rational, logical conclusion without engaging in speculation on the basis of that material. Such a conclusion, he submitted, could only be achieved by a judge.

Although it was not apparent from anything in the affidavits of Mr Abbas that the present application was brought on the basis of issues related to the COVID19 pandemic, Mr James indicated, after I raised that matter with him, that the application was also put on that basis. In that regard, he submitted that even if jury trials were recommenced, the difficulty of the jurors having to maintain proper social distance was hardly conducive to sorting out the distinction they would have to make between conjecture and logical propositions. Mr James also drew my attention to a number of cases which had considered the issue of judge-alone trials in the light of the present pandemic, particularly the decision of Elkaim J in R v Coleman [2020] ACTSC 97.

Mr James submitted that there were no factual issues in the trial that required the application of objective community standards, a reference to s 132(5) of the Criminal Procedure Act.

The Crown opposed the judge-alone trial. The Crown submitted that the only significant factual issue in the proposed trial is whether it can be inferred from a combination of circumstantial evidence that the accused provided a key to the front door of the victim’s unit and/or information as to the route and means so that the assailants could gain access, within a secure building, to the floor on which the victim’s unit was situated. The Crown submitted that the drawing of inferences in an entirely circumstantial case such as the present, involves a factual issue that requires the application of objective community standards that should ordinarily be the province of a jury.

The Crown pointed out that the Director of Public Prosecutions, Prosecutions Guideline 24 provides:

The Crown submitted that apart from the publicity in the print media in November 2017 and February 2018, there has been little or no media attention to the case or trial. The Crown submitted that while the murder of the deceased, a notorious criminal, could be described as a “gangland killing”, there is no evidence that that of itself would result in publicity from which it could be inferred that a jury would be prejudiced against the accused.

The Crown submitted that, even if the defence adduced evidence, that there were many people within the criminal world who wanted the deceased killed, it is not the Crown case that the accused was one of the people who attacked and killed the deceased. The Crown submitted that any potential publicity about those persons was not likely to be such that it would prejudice the accused by his not being able to obtain a fair trial from a jury.

In relation to the restrictions brought about by the COVID19 pandemic, the Crown first noted that it was not apparent that the present application was brought on grounds other than prejudice from the publicity identified in Mr Abbas’s affidavits. The Crown observed, however, that some jury trials had recommenced, and submitted that, should there be further outbreaks of the virus which result in further lockdowns, the matter of a judge-alone trial could then be revisited.

My determination that the trial should proceed by way of judge-alone trial is entirely related to the COVID19 pandemic. Had it not been for that consideration, I would have rejected the applicant’s notice of motion.

The material attached to the first affidavit of Mr Abbas, to the extent that it dealt with the killing of the deceased, consisted of press articles in 2017. The remainder of the articles dealt, as I have indicated, with persons such as Mr Dib who might give evidence at the present trial, and with other persons more peripherally related to other persons who might be mentioned in the present trial because of their underworld connections. Those articles, in general terms, were published from 2016 to early 2019.

The newspaper articles attached to Mr Abbas’s affidavit of 1 July 2020 do not make any reference to the accused. They make one reference only to the deceased, being a statement that the jury in the trial of a man found not guilty of the murder of Hamad Assaad were not told that the police and others firmly believed that the deceased was one of the gunmen involved in that killing. The other articles refer to other underworld figures who might be thought to be associates of the deceased and possibly the accused.

None of that material is likely to prejudice the fair trial of the accused before a jury. Juries are always instructed that they are not to make their own enquiries, particularly enquiries on the internet. Juries are given directions about the use they can make of particular evidence and why certain matters are not to be used by them when considering the guilt of an accused. They are given directions on the proper approach to reasoning in a circumstantial case, including directions concerning how to go about drawing inferences from evidence that is led, and a direction that they must not speculate.

In Allen v R [2020] NSWCCA 173 Bell P (with whom I agreed) said:

Despite the dissent of Button J in that case on the basis, principally, that there are a number of situations, often provided by statute, where it is accepted that the prejudice of some evidence cannot be overcome by directions to a jury, his Honour accepted at [151] that the general proposition that jurors obey directions is correct.

There is nothing unusual about cases involving accused persons and deceased persons who have involvement in the criminal underworld being tried by a jury. That is so, not only in direct evidence cases, but in circumstantial evidence cases also. There does not appear to me to be anything out of the ordinary in the present case in relation to those matters.

By reason of the present pandemic the COVID-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020 (NSW) was enacted. Schedule 1 amended the Criminal Procedure Act and, relevantly, inserted s 365 which provides:

In the Second Reading Speech to this legislation the Attorney General relevantly said:

I agree with Lerve DCJ when he said in Regina v BD (No. 1) (Judge alone application) [2020] NSWDC 150 at [19]:

Some jury trials have resumed in the District Court. In one of those trials in which the Crown prosecutor in the present trial appeared, delays were caused because a juror had been in contact with a person who had been at a hotel recently identified as a virus hotspot. The Crown prosecutor quite properly told me that, had that juror or any other juror been tested and found positive, all of the persons in the trial who had been present in the court room for long periods, including the judge, counsel and solicitors, would have to have isolated and tested.

In a judge-alone trial over which I presided in the weeks before the present notice of motion was heard, the Crown prosecutor needed to be tested because of symptoms he experienced. That resulted a short delay of two days until his negative test result was received.

Those are not likely to be isolated matters in the months ahead. Quite obviously, the more people involved in any trial, the greater the chance of a person displaying symptoms, whether or not those symptoms are ultimately determined to indicate the presence of the virus. The need for testing alone means that the trial is interrupted. In the unfortunate event that a test proves positive, the only realistic outcome is that the jury would need to be discharged.

The deceased in the present case was murdered on 10 March 2017. The accused was arrested on 8 November 2017. His trial has already been adjourned once although not directly for reasons associated with the pandemic. The trial, as a jury trial, was fixed for four weeks to commence on 7 September. It would be entirely unsatisfactory if the trial did not complete in September/October. Any adjournment of the trial would mean that it would be unlikely to take place before the first half of 2021. That is an unacceptable period of time for the accused to wait, even though he is currently on bail in the community.

My attention has been drawn to two decisions of Elkaim J, being R v UD (No 2) [2020] ACTSC 90 and R v Coleman. Those decisions are not directly relevant, because s 68BA of the Supreme Court Act 1933 (ACT) enables the ACT Supreme Court to make an order that the proceedings be tried by judge alone even if the accused does not consent. Under s 68BA that Court can make such an order if satisfied that the order will ensure the orderly and expeditious discharge of the business of the Court and is otherwise in the interests of justice. Although s 365(2)(b) requires that a court in New South Wales consider whether a judge-alone trial is in the interests of justice if the prosecutor does not agree to one, such a consideration under s 132 or s 365 does not involve identical considerations to the procedure under s 68BA of the ACT Act.

Nevertheless, I certainly agree with Elkaim J that, following Mickelberg v R (No 3) (1992) 8 WAR 236 at 251:

Having regard particularly what was said by the Attorney-General in the second reading speech to the emergency legislation, it seems to me that it is in the interests of justice that criminal trials should proceed with the least chance of interruption and delay during the current crisis. That means, perhaps, in more cases than would otherwise have warranted it, judge-alone trials.

In my opinion, in the present pandemic, with the risks of a jury trial being aborted, the interests of justice in the present case require a judge-alone trial.

The suggestion that the issue could be considered closer to the commencement of the trial, is not practicable. A number of procedures have been put in place to enable jury trials to proceed in the Supreme Court. One of those matters involves there being adjoining courtrooms so that one such courtroom can be used by the jury in lieu of the close confines of a jury room. The second matter is that empanelment of Supreme Court juries takes place in special courts within the District Court complex, by prior arrangement with the Chief Judge of the District Court. In all of those circumstances, it is not feasible to delay the decision of whether a trial will be by judge alone.

For these reasons I ordered that the trial of the accused be a judge-alone trial.