Citation: R v Zarshoy [2017] NSWSC 1437
Court: Supreme Court of New South Wales
Date: 23 October 2017
Judge(s): Hidden AJ
Background
The accused stood trial for the murder of Mahmoud Hamzy and the infliction of grievous bodily harm on Omar Ajaj, arising from a shooting at a residential garage at Revesby Heights in the early hours of 29 October 2013. The Crown alleged that the accused and two other armed men entered the garage intending to kill a different person, Mohammad Hamzy, but fatally shot Mahmoud Hamzy instead. The accused's consistent position was that he was not present at the scene.
This was a retrial. At a previous joint trial before Hamill J, the jury had been unable to reach a verdict in relation to the accused. He had remained in custody since his arrest in October 2014.
During the retrial, police intercepted telephone conversations involving the accused pursuant to a warrant. The Crown sought to tender passages from two conversations, recorded in August and September 2017, as evidence at trial. Defence counsel objected to the tender, and Hidden AJ conducted a voir dire (a preliminary hearing to determine the admissibility of evidence) to resolve the question.
Legal Issues
- Whether the intercepted telephone conversations were capable of being interpreted as admissions of guilt by the accused.
- Whether the probative value of the conversations was outweighed by the danger of unfair prejudice to the accused, applying section 137 of the Evidence Act 1995 (NSW).
Decision
In the first intercepted conversation, the accused spoke with his brother about instructing his solicitor to offer the Crown a plea of guilty to grievous bodily harm with intent, as a compromise to avoid trial on the murder charge. He also discussed the ballistic evidence and expressed the view that it could not support a murder conviction. The Crown sought to characterise these passages as admissions of guilt.
Hidden AJ rejected that characterisation. His Honour found that the conversation, read fairly, did not admit of the interpretation the Crown sought to place on it. Without explanation, a jury hearing that the accused had explored a guilty plea to a lesser charge would likely treat it as evidence of guilt, without understanding that an innocent person facing a serious charge might rationally seek to negotiate a lesser plea in order to manage the risk of a much heavier outcome. Providing that context would require the accused to disclose the procedural history of the matter, including the prior hung jury, which would itself create significant prejudice.
His Honour observed that while experienced criminal lawyers would understand the dynamics of plea negotiation, a lay jury, even with directions, would have great difficulty accepting that an innocent person might offer to plead guilty to anything. The evidence therefore carried a real risk of unfair prejudice.
The second conversation, in which the accused appeared to ask a third party to speak to Mr Ajaj about the evidence, was similarly found not to contain any fairly implied admission of guilt. Hidden AJ also noted it would generate the same categories of prejudice as the first conversation. Both conversations were accordingly ruled inadmissible. Although his Honour identified strong reasons for exclusion under section 137, he ultimately rested the decision on the finding that the evidence was not reasonably capable of the interpretation the Crown advanced.
Orders Made
No orders were made in this decision.
Key Takeaways
- Evidence from intercepted conversations is not admissible simply because it touches on the subject matter of a charge; the conversations must fairly admit of the interpretation placed on them by the party seeking to tender them.
- Plea negotiations and instructions to a solicitor to offer a lesser plea do not, without more, constitute admissions of guilt capable of being left to a jury.
- Where admitting evidence would require a defendant to reveal prejudicial procedural history, including a prior hung jury, to provide necessary context, the risk of unfair prejudice under section 137 of the Evidence Act 1995 is heightened.
- Hidden AJ applied the framework from IMM v The Queen (2016) 257 CLR 300, under which the determination of probative value requires a judge to assess whether the evidence, if accepted, could rationally affect the probability of a fact in issue.
- The decision illustrates that even lay jurors receiving appropriate directions may be unable to fairly assess the significance of plea negotiation evidence, given the gap between professional legal understanding and common assumptions about guilty pleas.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), section 137 (exclusion of prejudicial evidence in criminal proceedings)
Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Secondary Sources
- Uniform Evidence Law (12th Edition)