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Supreme Court 15 February 2019

R v Safarjalani

[2019] NSWSC 96

Homicide
CRIME PRE TRIAL RULINGS ON EVIDENCE OBJECTIONS TO EVIDENCE BY ACCUSED

Citation: R v Safarjalani [2019] NSWSC 96
Court: Supreme Court of New South Wales
Date: 15 February 2019
Judge(s): Walton J

Background

The accused was charged with the murder of the deceased, who was shot five times at a Petersham street intersection at approximately 11:15 pm on 4 March 2014. The Crown case was entirely circumstantial. It alleged the accused either personally shot the deceased or participated in the killing through a joint criminal enterprise.

The accused faced a pre-trial evidentiary challenge process. His counsel objected to a range of evidence the Crown proposed to lead, including CCTV footage linking a vehicle to the shooting, bullet cartridges found in his bedroom, listening device recordings of conversations with his wife, and portions of his electronically recorded interview with police (ERISP).

Walton J had issued pre-trial rulings by email on 10 September 2018. This judgment sets out the reasons for those rulings.

Legal Issues

  • Whether CCTV and other evidence linking a black Toyota Kluger to the murder should be admitted as part of the Crown's circumstantial case
  • Whether listening device recordings concerning a man named Mr Murray were admissible, given the risk of jury speculation
  • Whether bullet cartridges found in the accused's bedroom 15 months after the shooting were admissible under section 137 of the Evidence Act 1995 (NSW), which requires exclusion where unfair prejudice outweighs probative value
  • Whether a lie told by the accused about how he arrived at the police station was admissible as consciousness of guilt or credit evidence
  • Whether three listening device recordings of conversations between the accused and his wife were admissible as admissions
  • Whether police questions 623-624 in the ERISP, which summarised much of the circumstantial case, were admissible

Decision

Issue 1: Toyota Kluger evidence

The court overruled the objection to evidence connecting a black Toyota Kluger to the shooting (at [15]-[16]). Although no witness directly identified the vehicle as a Toyota Kluger, the evidence was relevant and carried sufficient probative value to be placed before the jury. The court directed that appropriate jury directions would govern how that evidence could be used, including in relation to witness unavailability (at [16]).

Issue 2: Evidence relating to Mr Murray

The court upheld the objection to both the 3 October 2014 and 10 October 2014 listening device recordings concerning Mr Murray (at [23], [27]). On the 3 October recording, the Crown sought to draw an inference that the accused wanted Mr Murray out of the country to prevent him speaking to police, but there was no evidence from which that rational inference could be drawn (at [23]). On the 10 October recording, there was no evidence the accused played any role in Mr Murray's decision not to cooperate with police, and the evidence risked the jury speculating impermissibly about whether the accused had been at Mr Murray's house on the night of the shooting (at [26]-[27]).

Issue 3: Bullet cartridges

The court overruled the objection to evidence of bullet cartridges found in the accused's bedroom (at [36]). While three of the four cartridges could not have been used in the murder weapon, and the absence of evidence about how long the cartridges had been in the drawer reduced their probative value, the evidence was relevant to contradict the accused's claim that he had no access to firearms (at [33]-[34]). The court was satisfied that probative value outweighed the danger of unfair prejudice under section 137 (at [36]).

Issue 4: Lie about arriving by train

The court upheld the objection to evidence that the accused lied to police about arriving at the station by train (at [40]-[41]). The lie was not a material one: it had no bearing on the accused's movements on the night of the shooting or his relationship with the deceased. As it went only to credit, it was caught by section 102 of the Evidence Act and excluded (at [41]).

Issue 5: Listening device recordings of conversations with wife

The court admitted the recording of 1 December 2014, accepting the Crown's submission that it amounted to an admission which could be used by the jury to infer guilt (at [43]-[45]). The recording of 3 December 2014 was excluded as it contained no admissions, was not relevant, and referred to past criminal conduct by the accused in a way that was unfairly prejudicial (at [49]). The recording of 31 December 2014, capturing a heated argument between the accused and his wife, was also excluded. The court declined to characterise the accused's responses during that argument as admissions and found that even if they were relevant, they had limited probative value and a substantial likelihood of being misused by the jury, warranting exclusion under section 137 (at [55]-[56]).

Issue 6: ERISP questions 623-624

The court overruled the objection to police questions 623-624, which succinctly summarised much of the circumstantial case (at [60]). The questions formed part of a series directed at related topics, including the accused's disposal of his phone shortly after the shooting, and it was not unacceptable for police to pose them in that context (at [57]-[60]).

Orders Made

  • Objection to Toyota Kluger evidence: overruled
  • Objection to Mr Murray evidence: upheld as to the subject matter described in the relevant defence submissions (not concerning a separate paragraph about lies told to the accused)
  • Objection to bullet cartridges: overruled
  • Objection to lie about arriving by train: upheld
  • Listening device recording of 1 December 2014: objection overruled
  • Listening device recording of 3 December 2014: objection upheld as to the passages relied upon by the Crown
  • Listening device recording of 31 December 2014: objection upheld as to the passage from page 1 to 4.6 relied upon by the Crown (court found it did not constitute an admission)
  • ERISP questions 623-624: objection overruled as to the passages relied upon by the Crown

Key Takeaways

  • In a circumstantial murder case, evidence linking a vehicle to the crime scene may be admitted even without direct witness identification of that vehicle, provided it has some probative value and appropriate jury directions are given (at [15]-[16]).

  • A lie told by an accused to police is not automatically admissible as consciousness of guilt. Where the lie is immaterial to the facts in issue at trial, it goes only to credit and is excluded by section 102 of the Evidence Act 1995 (NSW) (at [40]-[41]).

  • The Supreme Court confirmed that an inference cannot be drawn from listening device recordings unless there is an evidentiary foundation from which a rational inference is available. Speculative reasoning that invites a jury to fill evidentiary gaps is insufficient to establish admissibility (at [23], [27]).

  • Under section 137 of the Evidence Act, a highly emotive recording between intimate partners, presented as an admission, may be excluded where the risk of the jury misusing that evidence substantially outweighs its probative value (at [55]-[56]).

  • Possession of ammunition found in the accused's bedroom, though discovered 15 months after the offence, may be admitted to contradict an accused's denial of access to firearms, even where a direct link to the murder weapon cannot be established (at [33]-[36]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
- R v Hillier (2007) 228 CLR 618; [2007] HCA 13