New South Wales Supreme Court CITATION : R v El Masri (No 2) [2010] NSWSC 1327 HEARING DATE(S) : 3/11/2010, 4/ll/2010, 5/11/2010, 8/11/2010, 9/11/2010, 10/11/2010, 11/11/2010, 12/11/2010, 15/11/2010, 16/11/2010 JUDGMENT DATE : 19 November 2010 JUDGMENT OF : Hoeben J DECISION : Jury directed to enter verdicts of acquittal. CATCHWORDS : CRIMINAL LAW - Application by accused for verdicts of acquittal by direction - charges of murder and wounding with intent to cause grievous bodily harm - significant gaps in Crown case - inferences upon which finding of guilt could be made not available to jury - a finding of guilt would involve speculation not inference - jury directed to enter verdicts of acquittal. CATEGORY : Principal judgment Doney v The Queen (1990) 171 CLR 207 CASES CITED : JMR (1981) 57 A Crim R 39 R v PL [2009] NSWCCA 256 R v R (1989) 18 NSWLR 74 PARTIES : Crown Rami - El Masri - Accused FILE NUMBER(S) : SC 2009/00158044 COUNSEL : Mr TR Bailey - Crown Mr T Hoyle SC - Accused SOLICITORS : Director of Public Prosecutions - Crown Aquila Lawyers - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOEBEN J Friday, 19 November 2010 2009/00158044 – R v Rami El MASRI (No 2) JUDGMENT 1 HIS HONOUR: Nature of Application The accused was indicted in respect of two offences: (1) On 14 December 2008 at Homebush in the State of New South Wales did murder Mohammed Omar. (2) On 14 December 2008 at Homebush in the State of New South Wales did wound Mahmoud Omar with intent to cause him grievous bodily harm. The accused pleaded not guilty. 2 After some preliminary argument and rulings, the matter commenced before a jury of twelve and myself on Monday, 8 November 2010. The Crown closed its case on Tuesday, 16 November. At the close of the Crown case, the accused made an application that the Court direct the jury to enter verdicts of acquittal in respect of each count. In due course I made such a direction and verdicts of acquittal were duly entered. The accused was released from custody. These reasons set out the basis for that decision. Factual Background 3 At approximately 1.30am on Sunday, 14 December 2008 the accused and a group of his friends, both male and female, were attending a nightclub known as "Beirut by Night". Their table was located on an upstairs level. 4 At about the same time the deceased, his girlfriend, his brother and friends were in the same premises seated at a table on the ground floor level near to the dance floor. The dance floor was extremely crowded and persons on it were engaged in what was described as a vigorous form of dancing. 5 A short time later, some of the deceased's group and most of the accused's group were on the dance floor. After some initial pushing, a brawl broke out. The precise cause of the brawl was not established. The estimate of the numbers involved in the brawl varied between 8 and 30. The participants were described as punching one another. Most of those not engaged in the fight tried to leave the dance floor. Others tried to separate the participants. 6 The brawl lasted only a matter of minutes. When the participants were separated, the deceased was observed to be bleeding from wounds in the upper left part of his chest. Shortly thereafter he collapsed and was carried or dragged into the kitchen where attempts were made to administer first aid to him. An ambulance was called but he died before arriving at hospital. 7 Four other persons appear to have received wounds in the brawl. The accused's brother, Ali, received a four cms stab wound from a sharp object on the underside of the left forearm. The deceased's brother, Mahmoud, received a stab wound three cms in length to his left upper arm. A friend of the accused's, Ahmad Bahwach, received a cut on the back of his right hand. That cut ran parallel to his knuckles. The accused had some cuts on the forearm. Which arm could not be established by the evidence. 8 The deceased suffered a number of wounds. The most important were two stab wounds to the front of the upper chest. The more serious of these was to the front of the left shoulder. It penetrated from the top of the shoulder downwards towards the back. This wound was approximately twenty cms in depth. Given the depth of the wound, the pathologist thought that the minimum length of the instrument which stabbed the deceased was fifteen cms. The wound was consistent with a stab wound caused by a knife. It was this wound which caused the deceased's death. 9 The second serious wound to the front of the chest was located on the left side but almost at the midline. That wound was at least 1.5 cms in depth and had pierced the deceased's lung. It was caused by a sharp object, but the pathologist could not be more specific. That wound, had it been left untreated, would eventually have caused death but did not cause death in this case. 10 The deceased suffered five or six other superficial cuts. They were all caused by a sharp instrument or object but none was serious. Each involved a superficial penetration of the skin only. Two of those wounds were located on the deceased's back, one on the upper shoulder on the left side and one just below the shoulder on the left side. There were three small cuts on the upper part of the left side of the neck and a longer cut on the left side of the neck, but towards the back. 11 The pathologist was not able to say whether the same instrument had caused all of the wounds to the deceased or whether more than one sharp instrument was involved. It was not possible to say whether the same instrument had caused the cutting injuries to the other persons. 12 A number of persons had blood on their bodies and clothes following the brawl. The accused had blood on one of his forearms from the wrist to the elbow. Part of the front of his dark coloured T-shirt was also wet with blood. 13 A friend of the accused, Mohamed Chamma, had little dots of blood on his face and had blood on his shirt, jeans and shoes. The accused's brother, Ali, had blood on his shirt and on other parts of his clothing. 14 The top, front part of the T-shirt worn by Ahmad Bahwach was wet with blood. He also had blood on his shoes. There was blood on the clothing of the deceased's brother, Mahmoud. He took off his T-shirt and wrapped it around the wound on his arm to reduce the bleeding. He said that he handed this to a police officer before he went to hospital. 15 A heavily bloodstained shirt was found in a waste bin in one of the toilets in the club (exhibit F). The owner of that shirt was not identified. 16 No DNA evidence was adduced. There was no evidence to connect any of the blood on the clothing or on those persons to the deceased. 17 After the arrival of the police and ambulance officers at the nightclub, the accused spoke to his brother, Ali, as his brother was getting into an ambulance to be taken to Westmead Hospital. The accused then drove from the premises. In the car were his friend, Mohamed Chamma, Ahmad Bahwach and a female friend of Ahmad Bahwach. 18 The accused telephoned his girlfriend, who was still at the club, and arranged to meet her at a service station near to the club. When they met he got into her vehicle and drove to Chahine restaurant at Bankstown. Mr Chamma followed behind driving the accused's vehicle with Mr Bahwach and his female friend in it. Apparently Mr Bahwach had left his vehicle at Chahine earlier in the night. 19 Some two days later when the accused was being driven to his place of work in Tumut, a fellow workmate observed that the accused had had a haircut. His hair was shorter on the sides and back than it had been on the night of the deceased's death. 20 There was evidence that there was a disagreement on the dance floor between the accused and the deceased and they were observed punching each other with closed fists. At the commencement of the fight, the deceased's head was observed to go backwards but no contact was observed between any person and the deceased at that time. At the beginning of the fight, the accused's shoulders and head were observed to be going forward towards the deceased "like he was going to attack him". 21 There was no evidence that the accused was ever seen to be holding anything in his hands. On the contrary there was evidence that at one point in time the accused had his hands on the shoulders of the deceased and had nothing in them. The deceased was wearing a short-sleeved, dark T-shirt at the time. There was no evidence that the accused or anyone was seen holding a knife. There was no evidence of any action by the accused which was consistent with him stabbing the deceased or anyone else. There was no evidence that all of the cutting wounds which various persons suffered, were caused by a single sharp instrument. They could have been caused by more than one such instrument. The weapon or instruments which caused the wounds to the deceased and others were not found. Consideration 22 The parties accepted that the accused's application for a verdict by direction could only succeed if there was no evidence upon which a jury, properly directed, could convict (R v R (1989) 18 NSWLR 74; Doney v The Queen (1990) 171 CLR 207; JMR (1981) 57 A Crim R 39; R v PL [2009] NSWCCA 256). 23 The Crown case put at its highest was this: The accused was acting aggressively towards the deceased and a fight developed between them in which they were punching each other. Subsequent to the deceased's death, the accused was observed to have blood on his forearm and on the front of his T-shirt. Two days after the incident, he was observed to have slightly altered his appearance by having his hair cut shorter than it was on the night of the incident. 24 Given that no one saw the accused with a knife, or anything else in his hands, and given the number of other persons who received cutting type wounds, there is nothing upon which a jury could infer that the accused inflicted the fatal wound. Such an inference is made even more difficult when it is taken into account that more than one wound was received by the deceased and that these events occurred in the context of a violent brawl in which a large number of young men of similar appearance were involved. 25 There was no basis upon which the Crown could exclude more than one cutting instrument being involved in the brawl and if there were more than one cutting instrument, there was no basis upon which the Crown could invite the jury to infer firstly that the accused had such a cutting instrument and secondly that it was his cutting instrument which caused the fatal wound. There was no evidence which could establish at what point in time in the course of the brawl the fatal wound was inflicted on the deceased. 26 The probative value of the evidence concerning the haircut was so low as to not allow any inference adverse to the accused to be drawn. The evidence was overwhelmingly to the effect that the persons at the nightclub who were able to give evidence as to what occurred, were able to identify the accused and place him on the dance floor engaged in a dispute with the deceased at the relevant time. 27 It is significant that in its submissions, the Crown said: "The Crown says the greatest difficulty confronting the jury and finding a factual foundation for drawing a rational inference of guilt is effectively this: That because no-one saw him, the accused, with a knife or something similar because of the number of people who were wounded in the melee, which numbers at least four, the Crown finds it very difficult to invite the jury conclude that the accused was the one who inflicted wounds with a cutting instrument, when there were a number of wounds to the deceased as well as to other people." (T.395.23) 28 In reality the Crown was endorsing the substance of the accused's submission (a) that the jury, properly instructed, could not find the accused guilty of the murder of the deceased. To do so would not involve inference from established facts but would involve speculation. It was for that reason that I directed the jury to enter a verdict of not guilty to the charge of murder. 29 The same considerations apply to the second charge on the indictment, i.e. wounding with intent to cause grievous bodily harm. The same evidentiary lacuna exists in relation to that charge as in relation to the murder charge. 30 It was for those reasons that I acceded to the accused's request and directed the jury to deliver verdicts of acquittal in respect of the matters on the indictment. This the jury did. Those verdicts were duly entered. ********** 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.