Baghdadi v R (No 2)

Case [2012] NSWCCA 77

Court of Criminal Appeal

New South Wales
Case Title: Baghdadi v R (No 2)
Medium Neutral Citation: [2012] NSWCCA 77
Hearing Date(s): On papers
Decision Date: 03 May 2012
Jurisdiction:
Before:

Campbell JA at [1]
RS Hulme J at [26]
Hoeben J at [27]
Decision:

(1) Set aside Orders 5 and 6 made by the Court in this matter on 26 October 2011.
(2) Enter a verdict of acquittal on each charge.
Catchwords:

CRIMINAL LAW - Appeal - Application for reconsideration - Criminal Appeal Rules 50C -  New trial order revoked and acquittal ordered

EVIDENCE - Evidence Act 1995, s 98 - coincidence - insufficient similarities
Legislation Cited:

Criminal Appeal Act 1912
Criminal Appeal Rules
Evidence Act 1995
Cases Cited:

AK v Western Australia (2008) 232 CLR 438
Baghdadi v R [2011] NSWCCA 234
Jones v The Queen (1989) 166 CLR 409
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
SKA v R [2011] HCA 13; (2011) 243 CLR 400
Texts Cited:
Category: Consequential orders
Parties:

Abdul BAGHDADI (Appellant)
Regina (Respondent)
Representation
- Counsel:

I McClintock SC; K Edwards (Appellant)
S Dowling; C Alexander (the Crown)
- Solicitors:

Elie Rahme & Associates (Appellant)
Solicitor for Public Prosecutions (the Crown)
File number(s):

2007/14512; 2007/15272
Decision Under Appeal
- Court / Tribunal:
- Before: Armitage DCJ
- Date of Decision: 21 August 2009
- Citation:
- Court File Number(s) 2007/14512
Publication Restriction:

JUDGMENT

  1. CAMPBELL JA: The Court delivered a judgment concerning this matter on 26 October 2011: Baghdadi v R [2011] NSWCCA 234 ("the 2011 Judgment"). These reasons for judgment presuppose a familiarity with that decision. However, to make it quite clear what this judgment decides, I repeat that the version of s 98 Evidence Act 1995 to which it relates is s 98 in the form it had before significant amendments came into effect on 1 January 2009.

  2. Two days after delivery of the 2011 Judgment, the solicitors for the Appellant made a request that the Court reconsider it. That request was made under Rule 50C of the Criminal Appeal Rules, which states:

    "(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.

    (2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered.

    (3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered.

    (4) The Court may not extend the time limited by subrule (2) or (3).

    (5) Nothing in this rule affects any other power of the Court to set aside or vary an order."

  3. The request for…

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AGLC
Baghdadi v R (No 2) [2012] NSWCCA 77
Case
[2012] NSWCCA 77
Decision Date

CaseChat Overview and Summary

In the case of Baghdadi v R (No 2), the appellant challenged his conviction for multiple robberies, arguing that evidence of a carjacking was improperly admitted under section 98 of the Evidence Act 1995. The High Court of Australia was tasked with determining whether the trial judge should have excluded the evidence of the carjacking under the provisions of the Act. The central legal issue was whether the events of the carjacking and the robberies were substantially and relevantly similar, as required by section 98(2) of the Act, and whether the evidence of the carjacking was therefore admissible in relation to the charges of the robberies.

The Court found that the events of the carjacking and the robberies were not substantially and relevantly similar, and therefore did not constitute "related events" as defined by section 98(2) of the Act. The Court noted that while there were some similarities between the events, such as the close temporal connection and the involvement of a distinctive BMW and a gun, there were also substantial dissimilarities. The Court concluded that because the events were not substantially and relevantly similar, section 98 did not apply, and the evidence of the carjacking was not inadmissible on those grounds. The Court further found that the evidence of the carjacking was not substantially and relevantly similar to the Fresh Fruit Palace robbery, and thus section 98 did not apply in relation to that charge either.

The Court's decision led to the revocation of the new trial order and the ordering of an acquittal. The Court found that the trial judge's error in admitting the evidence of the carjacking was not harmless, and thus the conviction could not stand. The Court ordered that the appellant be acquitted of all charges. This decision underscores the importance of properly applying the provisions of the Evidence Act in criminal trials, and the potential consequences of admitting inadmissible evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At [108] of the 2011 Judgment I set out the questions arising from ss 98 and 101 Evidence Act that the judge should in substance have asked himself. On posing those questions, I have come to the view that the events of the carjacking and the Berala robbery are not substantially and relevantly similar. That is because the carjacking involved the theft of a car from its owner in a place readily accessible to the public, while the Berala robbery involved an attempted theft of money from a retail establishment after it had closed for the day. There are some substantial similarities between the circumstances in which the carjacking and the Berala robbery occurred. These are the close temporal connection of the events, the involvement of the distinctive BMW, and the use of a gun (though not necessarily the same gun). There are also some dissimilarities in circumstances - the carjacking occurred at daytime, while the Berala robbery occurred after dark, there was evidence of a tall man (the Appellant) being involved in the carjacking while there was no such evidence concerning the Berala robbery, and there is no evidence of similarity between the clothing worn by the participants in the two events (apart from, possibly, cargo pants). That there are some substantial similarities between the circumstances of the two events might not be enough to show that "the circumstances" in which they occurred are substantially similar. However, it is not necessary to come to a concluded view about that. That is because s 98(2) requires two or more events to be both substantially and relevantly similar, and also that the circumstances in which they occurred are substantially similar before those events are taken to be "related events". Thus, my conclusion about the events of the carjacking and the Berala robbery not being substantially and relevantly similar is enough to show that they are not "related events" within the meaning of s 98(2). Consequently, there is no question about s 98 applying to the evidence of the carjacking, so far as the charge concerning the Berala robbery is concerned. In these circumstances, there is no occasion to consider the questions that would have arisen under s 101, if s 98 were triggered. For the same reason as applies concerning the carjacking and the Berala robbery, the event of the carjacking is not substantially and relevantly similar to the event of the robbery at the Fresh Fruit Palace. Thus, I conclude that s 98 does not apply concerning the admissibility of the evidence of the carjacking to the charge relating to the Fresh Fruit Palace robbery. The inapplicability of s 98 to the evidence of the carjacking might possibly be a consequence of the deficiencies in drafting of s 98 in the form it had before 1 January 2009. However, that is not necessarily so. The sort of circumstance in which s 98 is designed to control the admission of evidence is when someone is accused of doing action A, and the opposite party wants to submit: "He did actions B, C, D and E, and they are all so similar to action A that it would be a big coincidence if he had not done action A too". This is the sort of argument that is most familiarly found concerning crimes that are unusual, or where a distinctive modus operandi has been used. An argument of that type would not be available in the present case, because the carjacking is not similar to the two thefts. Whatever the explanation for s 98 not applying concerning the evidence of the carjacking, the words of the former s 98 are intractable - it applies only concerning "related events", as defined in s 98(2).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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