R v Chambour; R v Khallouf (No 2) [2016] NSWDC 245

District Court New South Wales

Medium Neutral Citation: R v Chambour; R v Khallouf (No 2) [2016] NSWDC 245 Hearing dates: 27 September 2016 Date of orders: 27 September 2016 Decision date: 27 September 2016 Jurisdiction: Criminal Before: Neilson DCJ Decision: Grant leave to each of the accused under s 132A to make an application for trial by a judge alone but pursuant to s 132 those applications are dismissed Catchwords: CRIMINAL LAW – Application for trial by judge alone – Trial involving matters normally entrusted to juries – Desire by accused for reasons for judgment not sufficient in itself to justify trial by judge alone Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Cases Cited: R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 Category: Procedural and other rulings Parties: Director of Public Prosecutions (NSW) (Crown) George Chambour (Accused) Youssef Khallouf (Accused) Representation: Counsel: Ms R Rodger (Crown) Mr B Vasic (Accused Chambour) Ms A Francis (Accused Khallouf)

Solicitors: Solicitor for the Director of Public Prosecutions (NSW) (Crown) Elie Rahme & Associates (Accused Chambour) Barakat Lawyers (Accused Khallouf) File Number(s): 2013/271652; 2013/271657 Publication restriction: No

ruling on application for trial by judge alone 1. HIS HONOUR: This is an application for leave under s 132A(1) of the Criminal Procedure Act 1986 to make an application out of time for trial of the current proceedings by judge alone. I have permitted the application for leave to run in tandem with the substantive application under s 132 of the Criminal Procedure Act 1986. 2. This is the second interlocutory ruling that I must make in these proceedings. I spent some time yesterday on the first interlocutory ruling, setting out the background of the matter. Two things have changed in substance since that time. This morning the Crown sought leave and was granted leave to file a fresh indictment. That indictment contains only six counts, whereas the previous indictment contained seven counts. 3. The indictment dated this day has had removed from it what was previously count 1 which was a charge of affray, to which the accused George Chambour pleaded guilty. The fresh indictment dated this day contains those charges to which pleas of not guilty have been entered. The only other difference is that the pleading of various counts under s 35(3) of the Crimes Act 1900 has been expanded such that, for example, the current count 3, previously count 4, is now worded in this fashion: "On the 8th day of January 2013 at Sydney in the State of New South Wales, while in company, did wound Chris Pattison and was reckless as to causing actual bodily harm to Chris Pattison or any other person." 1. The Crown has also announced this morning that it is not relying upon the extended definition of "recklessness" contained in s 4A of the Crimes Act 1900, and does not seek to establish proof of any count alleging recklessness by proving a requisite intention. 2. The Crown case is now narrowed in that the Crown alleges in respect of current counts 3 and 4 that Mr Khallouf wounded Chris Pattison and Kurtis Pattison and was reckless as to causing each of them actual bodily harm. The Crown does not seek to allege that Mr Khallouf intentionally wounded either Chris Pattison or Kurtis Pattison. Likewise, the Crown does not seek to prove that the accused, George Chambour, intentionally wounded Patrick White, but it is the Crown case that George Chambour wounded Patrick White and was reckless as to causing him actual bodily harm. 3. In the alternative to each of those counts, the Crown still alleges that each of the accused was part of an extended joint criminal enterprise to inflict actual bodily harm. 4. I should at the outset say something about the history of these proceedings as that history has been described to me by counsel. Paragraph 2 of the written submissions of Mr Vasic, on behalf of Mr Chambour (MFI 4), contained this matter: "The trial of Mr Chambour, Kbayli and Khallouf was set down to commence on 19 September 2016. Five weeks earlier, on 15 August 2016, the Crown served its Crown Case Statement [exhibit 1-1]. Such Statement did not state that it was the Crown case that Mr Chambour stabbed Patrick White [nor did that statement state that it was the Crown case that Mr Khallouf stabbed Chris Pattison and Kurtis Pattison.] It was also unclear as to precisely what evidence was relied on to support an allegation that Mr Chambour entered into an agreement and participated in any joint criminal enterprise to recklessly wound the three victims. During the week commencing 5 September 2016 the writer had some discussion with the allocated Crown Prosecutor. On 12 September 2016 a no bill application was served on behalf of Mr Chambour. While that no bill application was being considered, on 13 September 2016 the DPP served a Tendency Notice. On 15 September 2016 we [Mr Chambour's legal representatives] were notified that the no bill application was rejected. On Friday 16 September 2016 a request for further and better particulars of the Crown case was served on the DPP [exhibit 16-16]. An amended Crown case was then served on all three accused [exhibit 3-3]. In discussion between each counsel, it was agreed that a Judge Alone application would be made. The Crown were [sic] put on notice and the consent of the Crown was sought. The three accused were informed that instructions were required to be obtained before consent could be given. On 18 September 2016, written submissions prepared by Ms Francis on behalf of all accused were served on the DPP in support of this Application. On Monday 19 September 2016, Mr Chambour signed the Judge Alone application. It could not be signed earlier as Mr Chambour was in transit, being in custody for other matters. On Tuesday 20 September 2016, the Crown informed the defence that instructions in relation to consent were obtained and the application would not be consented to." 1. The matter was then allocated to me and came before me on Wednesday, 21 September 2016. By that stage the former accused, Abraham Kbayli, had reached an accommodation with the Crown and had entered certain pleas which are unknown to me. However, rather than being three accused on 21 September 2016, there were only the current two accused and the Crown served a further Crown Case Summary which is exhibit 2-2. 2. The written submissions of counsel for the accused Khallouf, Ms Francis, have been marked 1 for identification. After stating the requisite statutory requirements, Ms Francis stated this: "The critical facts in issue concern: • what inferences can properly be drawn from the conduct of the accused Khallouf as captured on CCTV footage - Opera Bar; • what inferences can properly be drawn from the conduct of each of the accused as captured on CCTV footage - elevator car park area and; • what acts can be reliably attributed to the accused - by circumstantial reasoning from the various inconsistent descriptions of civilian witnesses (largely of the clothes) worn by different persons in the melee in the car park area and; • to the extent that this is possible, what inferences can be drawn from the same." The reference in the first paragraph of that quotation concerning the conduct of the accused Khallouf is equally applicable to the accused George Chambour. 1. It is to be noted immediately, however, that although these issues would appear to be complex, they are all issues of fact, and issues of fact which are commonly dealt with by a jury. I have been addressed at some length about the superior ability of judges to make findings of fact because those findings of fact must disclose a reasoning process. However, judges can get facts wrong, especially when the facts depend upon the accuracy and reliability of eyesight and often 12 heads are better than one in drawing an appropriate inference from what is displayed on film or the like. 2. The next sentence in Ms Francis' submissions point out that neither of the accused is identified by any of the civilian eyewitnesses. That is because the identity of each of the accused would have been unknown to the members of the first group. There is no suggestion that any member of the first group of people that I identified yesterday knew any member of the group of second people that I identified yesterday. It is clear that there are inconsistent descriptions from lay witnesses. It is perhaps appropriate for me to demonstrate that by referring to the case that the Crown sought to make against Abraham Kbayli. 3. Mr Kbayli was wearing, at the time of his arrest, the attire shown in exhibit 21-21. That shows him with dark coloured hair and wearing a shirt that to me is the colour of the jacaranda flower which I would describe as lilac. That shirt has been variously described as purple or purplish, as maroon, as dark, and by one witness, at least, as bone. It also shows him wearing very dark coloured trousers which appear to me to be navy blue but they could be black. The activity of Abraham Kbayli is, of the three of Kbayli, Chambour and Khallouf, most easy to work out from the CCTV footage, exposed in both the Opera Bar and on the pedestrian ramp of the carpark and probably because it can be so readily identified that Kbayli reached an accommodation with the Crown. 4. However, all of these things are questions of fact, questions of fact which are commonly dealt with by a jury. For example, another issue turns around the fact that two relevant actors at the Opera Bar are the accused Youssef Khallouf and Mahmoud Barakat and I described at some length yesterday how each was dressed in a striped shirt, pointing out the differences that can be gleaned from certain of the exhibits before me, namely exhibits 6-6 and 7-7. However, a jury is just as well equipped to work out who is who and who may have done what from the CCTV footage as any judge. 5. Mr Vasic's written submissions, which have been marked MFI 4, raise a number of grounds in addition to the complexity of the factual issues. 6. The first is the likely length and complexity of the trial. Initially I was told that the case would take four weeks, that was the estimate with the matter to be tried by a jury. Both Ms Francis and Mr Vasic tell me that in a trial by judge alone the matter would take but a few days. I have some doubts about such a short estimate for the hearing of the matter. Exhibit 25-25 is the Crown's witness list. Assuming that it be not necessary to call any police witnesses, perhaps other than the officer in charge, and assuming that it is not necessary to call the DNA expert and that there is no issue about whether the physical damage done to the complainants amounted to a wound and therefore that it is not necessary to call any doctor, the Crown still intends to call 18 witnesses. No doubt the witnesses, as I have been told by the learned Crown Prosecutor, will be asked to identify themselves on the CCTV footage and asked to explain which direction at any one time they were facing and what they could observe. The evidence, even on a trial by judge alone, would take a number of weeks. Mr Vasic raised the likely length and complexity of the trial, but those pragmatic considerations do not appear to me to be as favourable as counsel for the accused would ask me to believe. 7. Mr Vasic also emphasised in his written submissions, and even more forcefully orally, that because of the way the Crown case was constructed this was a case which required a reasoned judgment. On p 5 of his written submissions he said this: "The directions required to be given to a jury would include an explanation of the concepts of 'joint criminal enterprise' as well as 'extended joint criminal enterprise' and how such concepts are to be applied to the facts of this case. The distinction between the two concepts is confusing to lawyers at times, let alone to a jury. In the Criminal Trial Courts Bench Book it is noted that the standard direction to a jury in relation to 'joint criminal enterprise' and 'extended joint criminal enterprise' 'are merged because the distinction may be confusing to a jury' (at [2-740]). The proper application of legal principles to the facts of this matter is critical. The provision of a written judgment affords to both the accused and to the public an explanation of the steps and the reasoning process of the decision maker. It serves to enhance the interests of justice". I should point out that the directions that are referred to by Mr Vasic in that extract from his written submissions are directions given to juries each week in the criminal courts of this State. 1. The next issue concerns identification evidence. It is trite law that judges know that identification evidence may be unreliable. Indeed when directing juries on identification evidence, judges tell the juries exactly that and try to point out to juries the miscarriages of justice that have occurred in the past because of close relatives misidentifying people and of people being misidentified and spending lengthy periods in gaol when they were in fact not guilty. However, because identification is a difficult issue the more reason to give such a warning to the jury, and in the event a judge sitting alone would have to give himself the same warning. Juries are commonly required to identify an offender from things such as CCTV footage, stills taken from it and the descriptions of witnesses, doing the best they can, which often depends upon their state of sobriety. These are essentially questions of fact. 2. Mr Vasic also asked me to take into account the subjective views of each of the accused and his belief that a jury trial may not be fair and that therefore a jury should be dispensed with. Clearly the case law requires me to take that into account. Traditionally a jury was used to prevent the agents of the Crown, judges and magistrates, dealing harshly with the subject. These days some members of the public believe that a jury may be more harsh yet fair to the subject than a judge might be, but subjective to views do not necessarily end up providing objective justice. 3. The thrust of both the case argued by Ms Francis and the case argued by Mr Vasic is that this is a difficult factual case and would be better served by a judge giving reasons, which might obviate any possible appeal from the jury's decision. The only case which each of the accused and the Crown referred me to is the decision of the Court of Criminal Appeal in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1. Commencing at [54] McClellan CJ at CL said this: "54. McKechnie J considered the content of the phrase 'interests of justice'. His Honour concluded that the interests of justice are not 'coterminous' with the interests of the accused (R v Cox [1960] VR 665). And said (at [31]): To the undue account to the subjective views of an accused person, as suggested in Arthurs at [79], [80] may have the result that a decision is really being made for the interests of an accused, not the interests of justice. 55. His Honour expressed his confidence in the jury system of trial, saying (at [32]): 'There is a public interest in the administration of justice carried out in public and in serious cases by the representatives of the public sitting as jurors. The fact that a judge must deliver written reasons where a jury gives a general verdict, is of no consequence. That is the difference between the two modes of trial provided for by law. The inscrutability of a verdict of 12 is tempered by unanimity. The verdict of one is tempered by the exposure of reasons. The interests of justice cannot then be affected by the mode of trial, each being valid". His Honour began his consideration of s 132 of the Criminal Procedure Act 1986 at [89]. In particular I have closely perused what follows thereafter. I have directed myself in accordance with [96] to [101] of that decision which I shall not cite because of its length. 1. At [110] his Honour turned to the question of efficiencies available in a judge alone trial. The Chief Judge at Common Law accepted that a consideration of efficiencies was part of the mix of issues that must be considered on an application under s 132 and those efficiencies included the likely length of a trial in any particular case, the difference of course being the length of a trial by jury and the length of a trial by judge alone. Commencing at [112] his Honour went on to say this: "As the reasons of Martin CJ in Arthurs make plain, the Chief Justice considered the requirement for a judge to give reasons to be a significant factor when considering where the interests of justice lie. To my mind the opportunity which a reasoned judgment affords to the accused and to the public to understand the steps in the reasoning process of the decision-maker compared with the inscrutability of the jury's decision, will depending upon all of the circumstances, be a factor which is relevant to the decision as to whether to order a judge-alone trial. However, it is but one factor and the weight to be given to it would depend upon the nature of the issues to be determined in the trial. If the trial will involve complex engineering, scientific or medical issues it may be more readily concluded that a verdict accompanied by the reasons of the trial judge would enhance the interests of justice both in relation to the accused and the maintenance of confidence in the criminal justice system. It would inevitably facilitate an appeal if the trial judge had erred". This is hardly a case involving complex engineering, scientific or medical issues. The issues to be tried are issues dealt with every week by juries in the State and have been for nearly 200 years. 1. In the same case Hidden J said this commencing at [119]: "119 On the issue of reasons for a verdict as a factor bearing upon the choice of the mode of trial, I share the view of McKechnie J in TVM v Western Australia (2007) 180 A Crim R 183 expressed in the passage from his judgment quoted at [55] of the reasons of the Chief Judge. The fact that there is now provision in New South Wales for majority verdicts (allowing for only one dissenting juror) does not reduce the force of his Honour's observations. 120. The perceived desirability of reasons for a verdict and the efficiency of the conduct of a criminal trial may well be matters of policy which the Legislature would consider if it were examining whether jury trials should be abolished or modified. However, as the law stands, I can see little or no place for either consideration in determining the appropriate mode of trial, but I would prefer to express no concluded view about the matter". The mere fact that a judge gives reasons and the mere fact that reasons are desirable if only to assist in appellate review are insufficient reasons of themselves to decide the appropriate mode of trial. The issues in this case, despite their claimed complexity, are issues normally determined by a jury which brings into the decision making process the life experiences of 12 members of the community. 1. There are a number of crimes which cause grave public disquiet. Public violence is such a case. It is important that the public interest in the administration of justice carried out in public be done by the representatives of the public sitting as jurors, as observed by McKechnie J in the Western Australian case referred to by both McClellan CJ at CL and Hidden J. 2. One alleged complication has been removed. I yesterday ruled against the admission of alleged tendency evidence. That is one a matter which will not complicate any jury trial or for that matter any judge alone trial. However, the more I consider the arguments advanced the more those arguments boil down to the allegation that the facts are complex and therefore that there should be reasons given by the tribunal of fact. The facts are ones which can be determined by a jury, and normally are, and the fact that a judge sitting alone gives reasons is in itself an inadequate justification for determining that the matter be tried by a judge alone. 3. For those reasons I grant to each of the accused leave under s 132A to make an application for trial by a judge alone but pursuant to s 132 I dismiss those applications.