Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Barakat (No 5) [2016] NSWSC 1313 Hearing dates: 13-14 August 2016 Decision date: 16 August 2016 Jurisdiction: Common Law - Criminal Before: N Adams J Decision: The telephone intercept evidence with respect to the conversations between the accused and Eleena Bakhos on 16 October 2013 is excluded.
Catchwords: EVIDENCE – whether telephone intercept evidence relevant – telephone conversations between the accused and his then girlfriend – where multiple competing inferences open the evidence – evidence relevant
EVIDENCE - application under s 137 of the Evidence Act 1995 (NSW) – whether probative value of telephone intercept evidence outweighed by danger of unfair prejudice – probative value of evidence weakened by existence of multiple available inferences – danger of unfair prejudice – evidence excludedLegislation Cited: Evidence Act 1995 (NSW), ss 38, 55, 76, 137
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 14Cases Cited: Basha v R (1989) 39 A Crim R 337
Colby v The Queen [1999] NSWCCA 261
DJS v R; NS v R [2012] NSWCCA 9
IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14
Papakosmas v The Queen (1999) 196 CLR 297
R v Barakat; R v Younes (No 1) [2016] NSWSC 1152
R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335
R v Hillier (2007) 228 CLR 618
R v Shamouil (2006) 6 NSWLR 228; [2006] NSWCCA 112
R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121
Shepherd v R (1990) 170 CLR 573Category: Procedural and other rulings Parties: Regina
Mahmoud BarakatRepresentation: Counsel:
Solicitors:
P McGrath SC (Crown)
D Dalton SC (Accused Barakat)
Solicitor for Public Prosecutions (Crown)
Elie Rahme Solicitors (Accused Barakat)
File Number(s): 2013/00327619
Judgment
Background
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On 7 September 2016, Mahmoud Barakat (“the accused”) pleaded not guilty before me to an indictment charging that on 12 July 2013 at Abbotsbury he did murder Ali Jammas (“the deceased”). At the same time David Younes (“Younes”) pleaded not guilty to being an accessory after the fact to that murder, but on 13 September 2016 the Director of Public Prosecutions directed that there be no further proceedings in relation to that count. I have summarised the Crown case as contained in the Crown case statement in my earlier decision in R v Barakat; R v Younes (No 1) [2016] NSWSC 1152, although I note that some of the evidence summarised therein is either no longer pressed by the Crown or I have ruled it inadmissible.
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Briefly, the deceased was shot four times in the chest in his driveway in Thorpe Place, Abbotsbury at 10am on 12 July 2013. The Crown case is that two men waited in a silver Subaru WRX outside the home of the deceased on the day of the shooting. One of those men is said to be the accused and the identity of the other man is unknown. The Crown case is that one of the two…
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- AGLC
- R v Barakat (No 5) [2016] NSWSC 1313
- Case
- [2016] NSWSC 1313
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the probative value of the telephone intercept evidence was outweighed by the danger of unfair prejudice to the respondent. The court considered the nature of the evidence, which involved multiple telephone conversations between the respondent and his girlfriend, and the various inferences that could be drawn from those conversations. The court was required to determine whether the evidence was sufficiently relevant to warrant its admission, or whether the potential for prejudice rendered it inadmissible.
The court found that the probative value of the telephone intercept evidence was weakened by the existence of multiple available inferences that could be drawn from the conversations. Given the lack of clarity and the potential for the jury to draw incorrect inferences, the court concluded that the probative value of the evidence was outweighed by the danger of unfair prejudice. As a result, the court excluded the evidence under section 137 of the Evidence Act 1995 (NSW).
The court ordered that the intercepted telephone conversations between the respondent and his then girlfriend were to be excluded from evidence in the trial. The court found that the potential for unfair prejudice outweighed the probative value of the evidence, and that the danger of the jury drawing incorrect inferences from the conversations was too great. This decision highlights the importance of carefully considering the admissibility of evidence in criminal trials, particularly where the potential for prejudice exists.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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