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Supreme Court 29 September 2016

R v Barakat (No 8)

[2016] NSWSC 1382

Homicide
CRIMINAL LAW SHOOTING MURDER

Citation: R v Barakat (No 8) [2016] NSWSC 1382
Court: Supreme Court of NSW
Date: 29 September 2016
Judge: N Adams J

Background

The accused faced trial in the Supreme Court charged with the murder of a man shot outside his home in Abbotsbury on 12 July 2013. The deceased was shot at least six times at close range in his driveway while speaking on his mobile phone, and died inside his home shortly afterwards. The shooting was witnessed by two neighbours, though the shooter kept his hooded top pulled over his face throughout.

CCTV footage captured a silver Subaru WRX parked near the scene from about 6:30am on the morning of the shooting. A person was seen exiting the passenger side at around 10am, running toward the deceased's address, and then returning to the vehicle, which sped away. The Crown case against the accused was entirely circumstantial. The accused was connected to the vehicle through later footage showing him driving it shortly after the shooting.

After the Crown closed its case, the accused indicated he would not present a case. His senior counsel then applied for a verdict by direction, commonly referred to as a "no case to answer" submission, before closing addresses were delivered.

  • Whether the evidence adduced in the Crown case had the capacity to establish beyond reasonable doubt that the accused was in the silver Subaru WRX at Thorpe Place on the morning of the shooting, either as the shooter or as the driver
  • Whether the timing of the application (made after the close of all evidence rather than solely at the close of the Crown case) was a procedural bar to the court's consideration of it
  • Whether the Crown's wholly circumstantial case, which the court described as very weak, nonetheless met the threshold required to go to the jury

Decision

Adams J first confirmed that the timing of the application presented no procedural obstacle. Although such applications are typically brought at the close of the Crown case, the fact that the accused had also closed his case did not prevent the court from considering the submission.

The court applied the well-established test from Doney v R (1990) 171 CLR 207: a verdict by direction is only appropriate where there is no evidence capable of supporting a conviction, not merely where the evidence is weak or insufficient to satisfy the judge personally. The question is whether the evidence, taken at its highest, has the capacity to establish the accused's guilt beyond reasonable doubt. The court noted that, in a circumstantial case, this requires assessing whether different inferences are capable of being drawn from the available evidence.

Adams J accepted that the Crown case was very weak and entirely circumstantial, with no direct evidence implicating the accused in the shooting. However, the evidence of the accused driving the vehicle at 10:32am, almost immediately after the shooting, combined with other circumstantial material, was sufficient to give the case capacity to go to the jury. The court distinguished an analogous directed acquittal relied upon by defence counsel, finding that the prior decision lacked any articulation of relevant legal principles and arose in materially different factual circumstances.

The court declined to direct an acquittal, concluding that the evidence had the capacity to establish beyond reasonable doubt that the accused was in the vehicle that morning, either as the shooter or as the driver.

Orders Made

  • The application for a verdict by direction was refused.

Key Takeaways

  • The applicable test on a no case to answer application is not whether the judge considers the evidence sufficient to convict, but whether the evidence has the capacity to support a conviction beyond reasonable doubt: Doney v R (1990) 171 CLR 207 confirms this distinction.
  • A wholly circumstantial case can survive a no case application even where the court describes it as "very weak," provided the evidence is capable of supporting the requisite inferences.
  • Refusing the application, the Supreme Court confirmed that the timing of a verdict by direction application made after the close of all evidence (rather than solely at the close of the Crown case) was not a procedural bar to consideration.
  • Where a prior directed acquittal is cited by analogy in support of a no case submission, the court will scrutinise whether that decision engaged with and applied the relevant legal principles; the absence of such reasoning may significantly reduce its persuasive value.
  • A co-accused's charge being discontinued before trial, and the accused electing not to present a case, do not affect the legal threshold the Crown must meet for its case to proceed to the jury.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 136

Cases:
- Doney v R (1990) 171 CLR 207; [1990] HCA 51
- Regina v XHR [2012] NSWCCA 247
- Shepherd v The Queen (1990) 170 CLR 573
- R v Tang [2006] NSWCCA 167
- Regina v PL [2012] NSWCCA 31
- Dicianna v R; Pintabona v R [2015] NSWCCA 201
- R v Josephine Pintabona (unreported, NSWSC, 28 May 2013)
- Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
- R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452
- JMR (1991) 57 A Crim R 39
- R v R (1989) 18 NSWLR 74