R v Khayat (No 9) [2019] NSWSC 1319

Supreme Court New South Wales

Medium Neutral Citation: R v Khayat (No 9) [2019] NSWSC 1319 Hearing dates: 3 May 2019 Decision date: 03 May 2019 Before: Adamson J Decision: Crown's application for leave to re-open granted. Catchwords: CRIMINAL TRIAL – application for leave to re-open after jury has commenced deliberations – purpose of additional evidence to correct errors in documentary evidence pertinent to question asked by jury – leave not opposed – leave granted and direction given Cases Cited: Dryburgh v The Queen (1961) 105 CLR 532; [1961] HCA 54 R v Bodi [1969] VR 36 Category: Procedural and other rulings Parties: Regina Khaled 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 – EX TEMPORE

Introduction 1. The Crown has applied for leave to re-open its case to adduce further evidence although the jury has already commenced its deliberations. I have decided to grant leave for the following reasons.

The facts 1. Yesterday afternoon the jury sent me a note (marked MFI 41) in which it asked questions about the times and dates of items 307, 308 and 309 of exhibit AA (the summary of Khaled Khayat's devices) as well as associated entries in exhibits AD (the Chat Summary) and Y (the summary of Mahmoud Khayat's devices). Having consulted with counsel, I brought the jury back and answered those questions in accordance with the material on those exhibits in an attempt to clarify the jury's understanding of the evidence. 2. This morning, I received a note from the Crown who had consulted with Mr Walmsley QC, counsel for Mahmoud Khayat, and copied an email to Mr Pontello, counsel for Khaled Khayat (who has been excused as the jury has already returned a verdict of guilty in respect of Khaled Khayat), to the effect that the Crown was concerned about the accuracy of entries in exhibit AA which were the subject of the jury's question. 3. Overnight, the Crown's legal representatives, both counsel and solicitors, have examined the original documents, known as UFED, in the prosecution brief which were used to produce exhibit AA. These inquiries revealed inaccuracies in the entries for 307, 308, 309 and 310. The Crown sought leave to reopen the Crown case in order to rectify these inaccuracies. Mr Walmsley did not oppose leave being granted as long as appropriate directions were given to the jury. He also indicated that he would agree with the facts proposed by the Crown as to the true times and dates relevant to items 307, 308, 309 and 310.