R v Aboukhalil (No 2) [2019] NSWDC 799

District Court New South Wales

Medium Neutral Citation: R v Aboukhalil (No 2) [2019] NSWDC 799 Hearing dates: 15 May 2019 Date of orders: 15 May 2019 Decision date: 15 May 2019 Jurisdiction: Criminal Before: P Taylor SC DCJ Decision: Decline to admit the transcript or sound recording of CCTV footage. Catchwords: CRIMINAL LAW – security device - CCTV sound recording – transcript of sound recording - apartment block – hallway – residential common area - private conversations - whether parties to conversation ought reasonably to have expected that it might be overheard Legislation Cited: Evidence Act 1995, s 135, s 137, s 138 International Covenant on Civil and Political Rights, item 17 Surveillance Devices Act 2007, s 4, s 7 Cases Cited: La Trobe Capital and Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4 Masri & Masri [2017] FamCA 539 Right v Stevens [2009] WASC 102 Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 Category: Procedural and other rulings Parties: Regina Ibrahem Aboukhalil (Accused) Representation: Counsel: Mr C Evans (Crown) Mr T Hughes (Accused)

Solicitors: Office of Director of Public Prosecutions (Crown) Elie Rahme & Associates (Accused) File Number(s): 2017/242685 Publication restriction: None

Judgment 1. On the Crown case, Zachary Kennedy gave an account to police of being waved down by a man as he was driving at about 7.30pm. When Mr Kennedy stopped, two men got into the car, one in the front passenger seat and one behind that passenger. The man in the front passenger seat pointed a gun at Mr Kennedy and the man in the rear held a large knife against Mr Kennedy's chest. As Mr Kennedy withdrew his foot from the brake, the car began to roll forward and he escaped from the car, although he was wounded by the knife in the process. Another man confronted Mr Kennedy outside the car. Mr Kennedy managed to run away. The three men and a fourth drove away in the car. 2. Four men were charged with robbery of the car with wounding, alternatively, wounding, and assault with intent to take a motor vehicle. The accused, Mr Ibrahem Aboukhalil, pleaded guilty to the alternative count of assault with intent to take a motor vehicle. The Crown has not accepted that plea. The primary issue in the trial seems to be whether the Crown can prove that the accused was involved in the common purpose of assaulting Mr Kennedy with the knife, causing the wounding. 3. The issue in this application on the voir dire is whether certain audio recordings should be admitted into evidence. The recordings were made by a CCTV security system in the hallway, adjacent to the lift doors on the floor of the apartment building where Mr Aboukhalil lived. It recorded the moving visual images and the conversations of three of the men, including Mr Aboukhalil, shortly before the incident with Mr Kennedy as well as conversations between the four men after the incident. There is no objection to the moving visual images being admitted. 4. The CCTV footage on the same evening also recorded the movements and conversation of Mr Aboukhalil and an unknown fifth person in the same lift area. By the end of the application, the Crown did not press that the sound recordings and transcript of that conversation be admitted as part of the evidence. 5. Part of the sound recordings are said to comprise the words contained in a transcript, the contents of which are disputed. Some substantial parts of the sound recordings are so indistinct as to be unable to be transcribed. A police officer's summary of the sounds is as follows: "12. At 7:10pm on 7th June 2017 Ibrahem Aboukhalil, Haydar Alzanati and Jason Kahla are captured on CCTV in a common area of the 21st floor of 2 Mary Street Burwood having a conversation. At 7:11:01pm Ibrahem Aboukhalil says 'Nah, I'll get Matty (indistinct) I'll be the right passenger.' At 7:11:12pm Ibrahem Aboukhalil says 'Once we open the doors, he'll jump out … (indistinct) … car … (indistinct).' 13. At 8:13pm on 7th June 2017 Matthew Guirguis, Haydar Alzanati, Ibrahem Aboukhalil and Jason Kahla are captured on CCTV in a common area of the 21st floor of 2 Mary Street Burwood having a conversation. At 8:13:48pm Jason Kahla says 'And you know what I thought of … I said that Matty will knock the fucken … (indistinct) and then you'll come' *laughter*. At 8:13:59pm Haydar Alzanati says 'We were running up the (indistinct) and go (indistinct) that Matty!' *makes the sound of a car speeding away* At 8:14:30pm Haydar Alzanati says 'Hey this full thing looked like it's fucking gaping hey?' to which all four accused laugh and Matthew Guirguis replies 'It's all right, I don't mind cuz. Fuck bro. Straight out bro. It's our area bro'. At 18:14:49pm Ibrahem Aboukhalil says 'Cause I was gonna grab (indistinct) with you. And then (indistinct) and ran off!' At 8:14:55pm Jason Kahla says 'Cuz, I'm telling you, we are lucky I jumped into the passenger seat'. 14. At 10.22pm on 7th June 2017 Ibrahem Aboukhalil and an unknown male are captured on CCTV in a common area of the 21st floor on 2 Mary Street Burwood having a conversation. At 10:24:25pm Ibrahem Aboukhalil says 'Listen, the boys don't know that you know what we did ok?'" 1. The accused opposes the admission of the sound recordings on two interrelated bases: the illegality of the recording and the discretion in s 138 of the Evidence Act 1995, and also the discretion in ss 135 and 137 of the Evidence Act 1995.