Citation: R v Barakat; R v Younes (No 4) [2016] NSWSC 1310
Court: Supreme Court of New South Wales
Date: 16 September 2016
Judge: N Adams J
Background
The accused stood charged with the murder of a man shot at close range in a suburban street in July 2013. A co-accused faced a separate charge of being an accessory after the fact to that murder. The Crown's case was entirely circumstantial, relying on the accused being either the shooter or the driver of the vehicle involved in a joint criminal enterprise.
Before the jury was empanelled, the court heard a series of pre-trial applications. This judgment concerns two pieces of Crown evidence that the defence successfully challenged: a bulletproof vest found under the accused's bed during a search warrant executed roughly three months after the shooting, and a brief reference to a firearm captured in a telephone intercept.
Adams J ruled on 9 September 2016 that neither item was admissible and delivered these written reasons shortly after.
Legal Issues
- Whether the bulletproof vest found in the accused's possession three months after the shooting was relevant under s 55 of the Evidence Act 1995 (NSW)
- If relevant, whether the probative value of the vest evidence was outweighed by the danger of unfair prejudice under s 137, particularly the risk of impermissible tendency or coincidence reasoning
- Whether a brief, context-free remark about a firearm captured in a telephone intercept was relevant under s 55
Decision
The bulletproof vest
Adams J accepted, at the threshold level, that the vest was technically relevant. Possession of such an item is uncommon, and its presence could rationally be taken as consistent with the accused fearing retaliation after involvement in the murder. However, the court found the probative value was not high, particularly because the Crown had no evidence that anyone associated with the deceased had actually taken, or attempted to take, any retaliatory steps.
Turning to s 137, the court was satisfied that the danger of unfair prejudice outweighed the evidence's limited probative value. There was a real risk the jury would engage in impermissible tendency or coincidence reasoning, concluding that only someone who uses guns unlawfully would need an unlawful bulletproof vest, and therefore reasoning that the accused was the type of person who might have committed the shooting. The Crown Prosecutor had conceded the question was "finely balanced" and could not clearly articulate how the jury should properly use the evidence without sliding into that prohibited reasoning. The vest evidence was excluded.
The telephone intercept
A telephone intercept captured the accused saying "He got a Colt 45" to an unidentified person, in an unknown context, while his girlfriend was calling from a shop dressing room. The Crown sought to use this fragment to show the accused was familiar with firearms and spoke casually about them.
The court found the intercept failed even the threshold test of relevance in s 55. Adams J noted that many people mention weapons in casual conversation without any genuine familiarity with firearms, and the reference may simply have reflected something seen on television. The weapon mentioned was not the type used in the killing, and the context of the remark was entirely unknown. The evidence was therefore incapable of rationally affecting the jury's assessment of whether the accused was the person who shot the deceased, and it was excluded as irrelevant.
Orders Made
- Evidence of the accused's possession of a bulletproof vest is excluded.
- Evidence of the call between the accused and Eleena Bakhos on 17 October 2013 is excluded.
Key Takeaways
- Even where evidence technically clears the low relevance threshold in s 55, a court may exclude it under s 137 if its probative value is modest and the risk of impermissible jury reasoning is real.
- The Supreme Court identified a specific mischief in the vest evidence: the risk that jurors would treat possession of an unlawful item as proof of a general criminal disposition, amounting to prohibited tendency or coincidence reasoning under ss 97, 98 and 101 of the Evidence Act, even though the Crown was not formally tendering the evidence on that basis.
- A Crown concession that the proper jury direction would be difficult to formulate without slipping into impermissible reasoning weighed against admissibility under s 137.
- Under s 55, evidence must be capable of rationally affecting the probability of a fact in issue. A context-free fragment of conversation mentioning a firearm, where the weapon named was not the murder weapon and the surrounding circumstances were entirely unknown, could not meet that standard.
- Circumstantial Crown cases carry no special licence to accumulate peripheral evidence of dubious probative value. Each item must still satisfy the evidentiary gatekeeping provisions on its own terms.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 55, 97, 98, 101, 137
Cases
- Melhuish v Regina (2002) NSWCCA 85
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Barakat; R v Younes (No 1) [2016] NSWSC 1152
- Steve v Regina (2008) NSWCCA 231