R v Khayat (No 6) [2019] NSWSC 1318

Supreme Court New South Wales

Medium Neutral Citation: R v Khayat (No 6) [2019] NSWSC 1318 Hearing dates: 16 April 2019 Date of orders: 16 April 2019 Decision date: 16 April 2019 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: See paragraph [23] Catchwords: CRIME – lies as consciousness of guilt – rulings made Legislation Cited: Criminal Code Act 1995 (Cth), ss 11.5, 101.6 Cases Cited: Edwards v The Queen (1991) 178 CLR 193; [1993] HCA 63 Category: Procedural and other rulings Parties: Regina Khaled Mahmoud Khayat (Accused) Mahmoud Khayat (Accused) Representation: Counsel: L Crowley QC/Y Shariff (Crown) R C Pontello (Accused Khaled Khayat) B Walmsley QC (Accused Mahmoud Khayat)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Matouk Joyner Lawyers (Accused Khaled Khayat) Birchgrove Legal (Accused Mahmoud Khayat) File Number(s): 2017/236820; 2017/236835

Judgment

Introduction 1. Mahmoud Khayat (the accused) and Khaled Khayat stand charged on indictment with conspiracy between 20 January 2017 and about 29 July 2017 to do acts in preparation for a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code). The relevant acts are alleged to have involved the use of an "improvised explosive device" (referred to as the bomb plot) or an "improvised chemical dispersal device" (referred to as the poisonous gas plot). 2. The Crown proposed to rely on a number of statements alleged to have been made by the accused in his recorded interviews as indicating a consciousness of guilt. 3. Mr Walmsley QC, who appeared on behalf of the accused, submitted that the statements were not capable of being construed as lies and that, therefore, the Crown ought not be permitted to rely on those statements for that purpose in its closing address. 4. Further, Mr Walmsley relied on the following passage from Edwards v The Queen (1991) 178 CLR 193, at 212-213 (Deane, Dawson and Gaudron JJ); [1993] HCA 63 in opposition to the Crown's proposal: "Furthermore, the reluctance of the appellant to recall any more than he was compelled to do in cross-examination occurred in a situation in which the appellant had been in custody and did not wish to inculpate others who were in custody with him — to be a "dog" in prison terminology. That was not questioned by the prosecution as a motive for withholding the truth, indeed the prosecution suggested it. Whilst in many cases it must be a question for the jury whether a lie was told because the truth was perceived to be inconsistent with innocence or for some other reason, if it was established that there was a deliberate lie in this case about a material matter (and we do not think that it was), the innocent explanation for that lie was so plausible that the lie could not have been probative of guilt. Quite apart from our concerns about the existence of the lie and its materiality, this should have prevented the trial judge from concluding that the telling of the lie was capable of amounting to corroboration of the complainant's evidence." 1. In the course of argument, the Crown indicated that it did not press some statements earlier identified as amounting to lies. Ultimately, the Crown relied on the following: 1. that the accused had not spoken to Tarek at all for the past two years (Interview #1 Q/A 360-361) 2. that the accused did not actually know whether Khaled Khayat was in contact with Tarek (Interview #1 Q/A 367-368 and Interview #2 Q/A 536-543) 3. that the accused did not know Khaled Khayat had bought the welder machine until he came to his house on the day they collected it (Interview #1 Q/A 1072-1073 and Interview #2 Q/A 1520; 1659) 4. that the accused was "surprised" about Amer Khayat (one of the brothers of the accused and Khaled Khayat) and Khaled Khayat coming past Cleveland Street on 15 July 2017 (Interview #3 Q/A 353; 564) 1. At the conclusion of argument, I ruled that (b), (c) and (d) were capable of amounting to lies and that the Crown was permitted to close to the jury on that basis but that (a) was not. What follows are the reasons for my rulings.