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Supreme Court 26 September 2016

R v Barakat (No 7)

[2016] NSWSC 1360

Homicide
EVIDENCE SHOOTING MURDER EVIDENCE AS TO CELL TOWERS INCOMPLETE EVIDENCE NOT RELEVANT.

Citation: R v Barakat (No 7) [2016] NSWSC 1360
Court: Supreme Court of New South Wales
Date: 26 September 2016
Judge: N Adams J

Background

The accused stood trial for the murder of the deceased, who was shot on 12 July 2013 at his home in Thorpe Place, Abbotsbury. The accused pleaded not guilty. A co-accused who had been charged as an accessory after the fact was discharged from proceedings before the jury was empanelled.

The Crown sought to rely on two connected pieces of evidence to support an inference that the accused had conducted surveillance of the deceased's home in the weeks before the shooting. First, the deceased's wife gave evidence that, four to six weeks before the shooting, she and the deceased observed a black Range Rover parked in a nearby street at around 12:30 to 1:00am. The accused owned a dark blue Range Rover that had been described by a police officer as appearing black in daylight. Second, the Crown sought to adduce the accused's mobile telephone records for the four-to-six-week period prior to the shooting, which placed him near a Telstra cell tower on Cowpasture Road, three to four kilometres from the deceased's home, on two evenings in late June 2013.

The accused's counsel objected to both the eyewitness evidence and the telephone records being placed before the jury. The voir dire (a preliminary hearing to determine admissibility) was stood over on two occasions to allow the Crown to seek further information from Telstra, but Telstra had not fully responded by the time the Crown case was nearing its end.

  • Whether the eyewitness evidence of the deceased's wife, regarding her observation of a black Range Rover in a street near the deceased's home, was relevant under s 55 of the Evidence Act 1995 (NSW).
  • Whether the mobile telephone records placing the accused near a cell tower on Cowpasture Road were relevant under s 55 of the Evidence Act 1995 (NSW).
  • Whether, taken together, the two pieces of evidence were capable of rationally affecting the assessment of the probability of a fact in issue in the proceedings.

Decision

Adams J concluded that the evidence, in its current state, was inadmissible for want of relevance. The central problem was the mismatch in timing. The deceased's wife placed the sighting of the black Range Rover at approximately 12:30 to 1:00am, but the telephone records showed the accused near the Cowpasture Road cell tower only on the evenings of 20 June 2013 (between about 9:13pm and 9:23pm) and 24 June 2013 (around 11:43pm to 11:48pm). Neither occasion coincided with the time of the alleged sighting.

The telephone records also created internal difficulties. On 20 June 2013, data records showed the accused's phone connecting simultaneously to a tower on the M5 Motorway and a tower on Cowpasture Road, casting doubt on the reliability of the GPRS positioning. More broadly, the Cowpasture Road cell tower was three to four kilometres from the deceased's home, and its coverage area was never precisely established due to incomplete information from Telstra. The court found that the records could place the accused only in a general area, possibly some kilometres from Hackett Drive, for a matter of minutes.

Adams J noted that even setting aside the telephone record difficulties, the probative value of the eyewitness sighting was questionable on its own terms. The black Range Rover was parked approximately 500 metres and two corners away from the deceased's home, facing away from it, in a position from which the deceased's premises could not be observed. The court acknowledged that, had the telephone records corroborated the timing of the sighting, the evidence would have been allowed before the jury despite those weaknesses.

Because the telephone records did not place the accused in the area at the relevant time, and because the cell tower evidence was incomplete and ambiguous, the court held that the evidence was not capable of rationally affecting the probability of any fact in issue. The application to exclude both the eyewitness evidence and the telephone records was upheld.

Orders Made

  • The accused's application to have the evidence of the deceased's wife and the telephone records excluded was upheld.

Key Takeaways

  • Under s 55 of the Evidence Act 1995 (NSW), evidence is relevant only if it is capable of rationally affecting the assessment of the probability of a fact in issue; the Supreme Court here found that threshold was not met where the telephone records and eyewitness evidence were irreconcilable in timing.
  • Cell tower records that place a person only within a broad and imprecisely defined area, and at a different time from the alleged sighting, are insufficient on their own to establish presence at a particular location.
  • Simultaneous connections to geographically separate cell towers in GPRS data records may undermine the reliability of that data as positional evidence.
  • Where the Crown relies on two pieces of evidence that are mutually dependent for their probative force, a significant factual gap in one piece may render both inadmissible.
  • The court left open the possibility that the eyewitness sighting evidence might have been admissible if the telephone records had corroborated the relevant time and location, indicating that the exclusion was specific to the evidentiary state of the Crown's case at trial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 55 (relevance test)

Cases
No cases were cited in the judgment.