Mr Doudar pleaded guilty to being an accessory after the fact to the murder of Mahmoud Hawi, on the basis he aided in the disposal of the getaway car. Mr Hawi was shot dead by a balaclava-wearing gunman outside a gym in Sydney, during February 2018. Mr Doudar was found in possession of a car matching that used in the shooting. DNA matching Nazlioglu and Eljaidi, a balaclava with Nazlioglu’s DNA on it, in addition to gun residue, were found in that car.[1]
In an unusual turn of events, while the principal co-accused – Yusuf Nazlioglu and Jamal Eljaidi – were both acquitted, Doudar was still sentenced on his plea of guilty to 4.5 years imprisonment. Doudar was sentenced on the basis he assisted Nazlioglu and Eljaidi to evade justice by disposing of the car linked to their alleged murder of Hawi. Doudar’s guilty plea occurred prior to the principal co-accused, Yusuf Nazlioglu and Jamal Eljaidi, being tried and acquitted by a jury for Hawi’s murder. Yet, his sentence occurred after their acquittal. In other words, Doudar was sentenced for a crime linked to the primary offence of murder, which was not proven against Nazlioglu and Eljaidi.
So how does the law apply? Can someone be held criminally liable as an accessory to an offence that is not successfully proven against the principal accused?
Let’s take a closer look.
The NSW Crimes Act 1900, s 347 makes clear that an accessory after the fact can be tried and sentenced before, after, or jointly with the proceedings prosecuting the principal offenders.[2] Meanwhile, the NSW Criminal Trial Courts Bench Book, states that being an accessory after the fact: “…is a separate and distinct offence from that committed by the principal offender but it is dependent upon the fact that the principal offender committed a specific crime.”[3] This aligns with the traditional common law approach elsewhere, which considers an offence of accessory to be an “absurdity” in the absence of a proved offence against the principal.[4]
Interestingly, the agreed statement of facts presented at Mr Doudar’s sentence referred to the acquitted Nazliogu and Eljaidi as having committed the murder. Even the Supreme Court sentencing remarks in respect of Mr Doudar state: “The person who shot Mr Hawi was Yusuf Nazlioglu, a close friend of Mr Doudar.” And “Nazlioglu was driven to the scene of the shooting…by Jamal Eljaidi.”[5] Ordinarily, these statements might raise questions about prejudice to proceedings against the alleged principal offenders, Nazlioglu and Eljaidi. However, as both men were acquitted entirely of Mr Hawi’s death (acquitted of murder and manslaughter), double-jeopardy means neither Nazlioglu nor Eljaidi can be tried again for this crime, except in very extenuating circumstances.[6]
Unfortunately, case law – both in NSW, and for our purposes, Queensland – appears silent on the issue. It therefore seems a particularly missed opportunity in R v Doudar that reasons were not provided to support the sentencing of the accessory, in the face of acquittal of the alleged principals.
Ultimately, the issue may turn on the fact that Doudar pleaded guilty, rather than being found guilty after trial. Doudar’s plea may be considered an admission of guilt, not tarnished by a ‘miscarriage of justice’, such as a lack of understanding of what the plea meant, such that a Court may not grant leave for the plea to be withdrawn.[7] On the one hand, Doudar may have entered his guilty plea too soon; had he waited until the trial of the principal co-accused concluded, he too may have been acquitted. On the other hand, the decision to plead guilty may have been a practical one to secure the earliest possible release, and in light of the evidence against the accused men.
In any case, the ramifications of R v Doudar will likely affect those charged with being an accessory after the fact for some time to come. Lawyers should watch with keen interest for movements towards clarity on this issue.
Further readings (available as at 26/11/2020):
[1] R v Doudar [2020] NSWSC 1262, [11]. [2]Crimes Act 1900 NSW, https://www.legislation.nsw.gov.au/view/html/inforce/2020-10-27/act-1900-040# [3]https://www.judcom.nsw.gov.au/publications/benchbks/criminal/complicity.html (emphasis added). [4] ‘Conviction of an Accessory after Acquittal of the Principal’, Columbia Law Review (1918) 18(5) 471, 472. [5]R v Doudar [2020] NSWSC 1262, [6]-[7]. [6] For a brief overview of double-jeopardy, see: The Rule of Law (2019) ‘Double Jeopardy and Law Reform Resource’, The Rule of Law, https://www.ruleoflaw.org.au/wp-content/uploads/2019/02/2019-02-05-FINAL-Double-Jeopardy-and-Law-Reform-Resource-1.pdf. [7] Will Tuckey, ‘Pleas and traversals’, Criminal CPD.net (2018), https://criminalcpd.net.au/wp-content/uploads/2018/06/Plea-and-Traversals-Wil-Tuckey-June-2018-.pdf.