ACCUSED CHARGED AS AN ACCESSORY TO THE CRIME OF MURDER BY PROVIDING ASSAILANTS WITH INFORMATION AND KEY TO THE VICTIM’S UNIT
R v Jaghbir (No 3) [2020] NSWSC 1383 (12 October 2020)
This case involves the accused being charged as an accessory to the crime of murder for assisting the assailants in killing the deceased by providing building access information to facilitate the entry of the assailants to the residential building to which the deceased’s unit was situated and by providing the assailants with a key to the unit in which the deceased was killed.
Facts:
The accused is charged as an accessory to the crime of murder. The crown alleges that the accused provided assistance by:
(a) providing a key to the unit in which the deceased was killed to the principal offenders or to someone to facilitate entry to the deceased’s unit by the perpetrators; and/or
(b) providing building access information to facilitate entry into the residential building in which the deceased’s unit was situated (ie. entry by a staircase at the rear of the building) so as to avoid the need to use the electronic elevator.
Issue: Is the accused guilty of being an accessory to the crime of murder by providing a key and building access to the assailants?
Law:
- The elements of the offence of being an accessory before the fact are these:
- That the principal offender committed the offence of murder;
- That the accused intentionally set out to assist the principal offender in the preparations to commit that offence;
- That the crime which the principal offender committed was one that the accused intended would be committed or was within the scope of what he foresaw that the principal offender would do;
- That the accused knew at the time of the assistance all the essential facts, both of a physical and mental nature, which made what was to be done by the principal offender a crime; and
- That the accused, before the crime was committed by the principal offender, neither had a genuine change of mind nor expressly instructed the principal offender not to commit the offence.
Analysis:
As to the Building access information, the court is not convinced beyond reasonable doubt that the accused provided the Building Access Information to the assailants. Certainly, the accused was informed of the existence of entry through the back-fire stairs, although he was told at the same time that it would be necessary to make contact with the people who lived in unit 1 so that that access could actually be made available.
It is possible that the accused provided the Building Access Information after the failed entry attempt came to his attention, but that would be mere conjecture. Nor do the court consider that the Building Access Information was sufficiently unique to the accused that it must be inferred that the entry by the assailants on 10 March derived from the imparting of that knowledge from the accused to the assailants.
As to the provision of the key, the court found beyond reasonable doubt that the assailants entered the unit on 10 March by using a key. The accused was the only person who could have provided a key for duplication, or a duplicate key. In those circumstances, the frequent contact with Mr. Sleiman on and after 3 March when the accused had a key to the unit, and what was said by the accused to M1 and Mr. El-Hallak on 25 July compels a conclusion that the accused was involved in the killing.
Taking into account that the assailants entered the unit using a key, the accused’s opportunity and capacity to have the key duplicated, the admission made in the 25 July conversation (where the accused was very keen to ensure that Mr. Sleiman did not contact him by telephone following the murder of the deceased), the powerful inference of his knowledge of what took place on 8 March, his contacts with Mr. Sleiman at the relevant times, and his belief that Mr. Sleiman was involved in the deceased’s killing, I am satisfied beyond reasonable doubt that the accused provided assistance to the assailants by supplying a key or duplicate key to enable access to the deceased’s unit to kill the deceased by shooting him.
Conclusion: Accordingly, the finds the accused Ahmed Jaghbir guilty of procuring, aiding and counselling unknown persons to murder Kemel Barakat.
