Citation: R v Barakat (No 5) [2016] NSWSC 1313
Court: Supreme Court of New South Wales
Date: 16 August 2016
Judge(s): N Adams J
Background
The accused stood trial for the murder of the deceased, who was shot four times in the chest in his driveway at Abbotsbury at 10am on 12 July 2013. The Crown alleged that two men waited in a silver Subaru WRX outside the deceased's home, that one man ran from the vehicle and shot the deceased, and that the accused was that shooter. The Crown case was entirely circumstantial, relying on CCTV footage, telephone intercepts, call charge records, listening device evidence, and other circumstantial material.
A central figure in the pre-trial proceedings was Ms Bakhos, a young woman who had been in a relationship with the accused during the relevant period. After police attended her home on 16 October 2013 and questioned her about the murder, she made a series of telephone calls to the accused to arrange an urgent meeting. Those calls were lawfully intercepted.
The accused's senior counsel objected to the admission of seven intercepted telephone conversations between the accused and Ms Bakhos recorded on 16 October 2013. The court heard the application before a jury was empanelled, including a voir dire during which Ms Bakhos gave evidence.
Legal Issues
- Whether the intercepted telephone conversations were relevant within the meaning of s 55 of the Evidence Act 1995 (NSW)
- If relevant, whether the probative value of the telephone intercept evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995 (NSW)
- Whether competing inferences available from the evidence may be taken into account when assessing probative value for the purposes of s 137
Decision
Issue 1: Relevance under s 55
The Crown's primary submission was that Ms Bakhos immediately contacted the accused after police spoke with her because she knew he was involved in the shooting, having been told so directly given the close nature of their relationship. Adams J accepted this as one available inference from the timing, context, and content of the calls. However, the court identified at least four other competing inferences: that Ms Bakhos merely suspected the accused's involvement without direct knowledge; that she was aware police suspected the accused or Younes and wished to pass that information on; that she had recognised Younes' vehicle in the police photograph; or, as Ms Bakhos herself suggested, that she simply called the accused as she would on any ordinary day. The court characterised Ms Bakhos as a very unimpressive and evasive witness whose explanations were inherently implausible, and expressly rejected her "nothing unusual" account as the least likely inference (at [52]).
The court held that at least the last three calls (Calls Five, Six, and Seven) were relevant, finding that their tone, contents, and context could rationally affect the jury's assessment of whether the accused was involved in the murder (at [57]). Relevance was assessed on the assumption that the jury would accept the evidence, consistent with the High Court's approach in IMM v The Queen (at [45]).
Issue 2: Exclusion under s 137
Adams J then turned to whether probative value was outweighed by the danger of unfair prejudice. Relying on a line of New South Wales Court of Criminal Appeal authority, including DJS v R, R v XY, and R v Burton, the court confirmed that competing inferences may be taken into account when assessing probative value under s 137, even though credibility and reliability are not (at [64]-[65]). The existence of multiple competing inferences significantly weakened the probative value of the evidence (at [66]).
The court identified a specific and serious risk of unfair prejudice: if the jury heard Ms Bakhos give implausible explanations for the calls, they might conclude she was lying because she suspected the accused was involved in the murder, and then reason impermissibly that her suspicion was itself evidence of guilt (at [69]). That chain of reasoning was logically disconnected from any proper use of the evidence. Adams J concluded that no jury direction could adequately cure this danger, and that the danger of unfair prejudice outweighed the probative value of the evidence (at [70]-[71]).
Issue 3: Remaining chronology evidence
The defence accepted that the Crown could still lead evidence of the surrounding chronology of events: the police request to Younes on 6 August 2013, his subsequent meeting with the accused and Ms Bakhos, the police visit to Ms Bakhos' home on 16 October 2013, and her meeting with the accused and Younes later that day (at [72]).
Orders Made
- The telephone intercept evidence of conversations between the accused and Ms Bakhos on 16 October 2013 is excluded.
Key Takeaways
- Where multiple competing inferences arise from circumstantial evidence, the existence of those competing inferences is a proper consideration when assessing probative value under s 137 of the Evidence Act 1995 (NSW), even though questions of credibility and reliability are not (at [64]-[66]).
- Probative value under s 137 may be significantly weakened where several inferences of varying likelihood are open on the same material, including inferences that are neutral or not inculpatory (at [66]).
- A specific danger of unfair prejudice arose where a jury might reason from a witness's implausible denials to that witness's own suspicion of the accused, and then use that suspicion as a stepping stone to an inference of guilt: this constitutes reasoning "logically unconnected with the purpose of its tender" (at [69]).
- The Supreme Court confirmed that jury directions are not always adequate to overcome the danger of unfair prejudice, particularly where the impermissible reasoning process is likely to be difficult for jurors to identify and resist (at [71]).
- Exclusion of intercepted telephone calls under s 137 does not necessarily exclude all surrounding chronological evidence: the court preserved the Crown's ability to lead evidence of the sequence of events connected to those calls without tendering the calls themselves (at [72]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 38, 55, 76, 137
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 14
Cases
- Basha v R (1989) 39 A Crim R 337
- Colby v The Queen [1999] NSWCCA 261
- DJS v R; NS v R [2012] NSWCCA 9
- IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Barakat; R v Younes (No 1) [2016] NSWSC 1152
- R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335
- R v Hillier (2007) 228 CLR 618
- R v Shamouil (2006) 6 NSWLR 228; [2006] NSWCCA 112
- R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
- Shepherd v R (1990) 170 CLR 573