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Supreme Court 26 September 2016

R v Barakat (No 6)

[2016] NSWSC 1373

Homicide
EVIDENCE SHOOTING MURDER WHETHER EVIDENCE RELEVANT

Citation: R v Barakat (No 6) [2016] NSWSC 1373
Court: Supreme Court of New South Wales
Date: 26 September 2016
Judge(s): N Adams J

Background

The accused faced trial for the murder of a man shot at a residential address in Abbotsbury, Sydney, in the early morning of 12 July 2013. The Crown case rested substantially on CCTV footage placing a silver Subaru WRX near the scene before and after the shooting, and on footage of the accused returning that vehicle to its registered owner's home approximately 30 minutes after the shooting occurred.

When police arrested the accused more than three months later, they seized his mobile phone. Examination of the phone revealed that, shortly after 11am on the day of the shooting, an unknown person had sent him a multimedia message (MMS) containing a Channel 10 news bulletin reporting a shooting in Western Sydney that morning, with the victim in serious condition. The bulletin did not name the deceased or the suburb.

The Crown sought to rely on the presence of this MMS file in the accused's inbox as evidence implicating him in the murder. The accused's senior counsel objected to the evidence on the ground that it lacked relevance.

  • Whether the MMS file found on the accused's phone was "relevant evidence" within the meaning of s 55(1) of the Evidence Act 1995 (NSW), that is, whether it could rationally affect the assessment of the probability of a fact in issue.
  • Whether the absence of evidence identifying the sender, or showing that the accused opened or viewed the file, was fatal to the Crown's relevance argument.
  • Whether the evidence, if excluded from the Crown's case, could nonetheless be raised in cross-examination if the accused gave evidence.

Decision

Adams J framed the central question as whether the MMS file, taken at its highest, had the capability to rationally affect the assessment of the probability that the accused was the shooter or the driver of the vehicle on 12 July 2013. The court acknowledged that the coincidence of the accused receiving a news item about the shooting within an hour of it occurring was, on its face, highly suspicious. Nonetheless, suspicion alone does not satisfy the relevance threshold.

The court identified several factual gaps that proved fatal to the Crown's position. There was no evidence identifying who sent the message. There was no evidence the accused had ever opened or viewed the file. There was no reply or response from the accused. Taken together, the only available inference was that some unknown person thought the accused might be interested in the story, without any disclosed reason for that belief.

Adams J reasoned that the evidence, at most, spoke to the state of mind of the unknown sender, not to the state of mind or conduct of the accused. The court also sketched the circumstances in which such evidence could have been relevant: if the accused had searched for the bulletin himself (showing knowledge of the murder), if the file had been accessed at any later point (showing interest), or if the sender's identity had been established and investigated. None of those circumstances arose on the evidence before the court.

Although the Crown case evidence was excluded, Adams J left open the possibility that the Crown could seek leave to cross-examine the accused about the message if the accused chose to give evidence, noting this would not amount to impermissible case-splitting by the Crown in those circumstances.

Orders Made

  • Evidence of the MMS file received by the accused on 12 July 2013 is inadmissible.

Key Takeaways

  • Under s 55(1) of the Evidence Act 1995 (NSW), evidence must have the capacity to rationally affect the probability of a fact in issue; a strong intuitive suspicion does not satisfy that test without an identifiable inferential pathway to the accused's conduct or state of mind.
  • Where a third-party message is received on an accused's phone, the evidentiary weight depends heavily on whether the sender is identified, whether the accused accessed the material, and whether there is any responsive conduct by the accused.
  • The Supreme Court confirmed that the same evidence excluded from the Crown's case-in-chief may remain available for cross-examination purposes if the accused elects to give evidence, without that constituting impermissible Crown case-splitting (applying R v Chin (1985) 157 CLR 671 and R v Soma (2003) 213 CLR 299).
  • An absence of evidence that an accused deleted a message does not, without more, establish that the accused read or engaged with it.
  • Highly coincidental timing of a communication, standing alone, does not meet the relevance threshold where no rational inferential bridge connects the communication to the accused's knowledge or participation in the alleged offence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 55(1)

Cases
- R v Chin (1985) 157 CLR 671
- R v Soma (2003) 213 CLR 299