R v Barakat (No 5)

[2016] NSWSC 1313

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 excluded
Legislation Cited:	Evidence Act 1995 (NSW), ss 38, 55, 76, 137 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 14
Cases 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 573
Category:	Procedural and other rulings
Parties:	Regina Mahmoud Barakat
Representation:	Counsel: P McGrath SC (Crown) D Dalton SC (Accused Barakat)   Solicitors: Solicitor for Public Prosecutions (Crown) Elie Rahme Solicitors (Accused Barakat)
File Number(s):	2013/00327619

Judgment

Background

1. 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.

2. 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 men, most likely the accused, ran from that vehicle, shot the deceased, returned to the car and left the scene. Younes was the owner of a Silver Subaru WRX with registration BU51NU at that time. There is evidence that the accused had borrowed it some days prior to the shooting.

3. The case against the accused for murder is circumstantial. It relies upon closed-circuit television (“CCTV”), telephone intercepts, geo-positioning by way of call charge records (“CCRs”) and reverse call charge records (“RCCRs”), listening device evidence and other circumstantial evidence.

Telephone intercept evidence

4. A jury has not yet been empanelled. A number of pre-trial applications have been made since 7 September 2016. One of those applications concerns an objection made by Mr Dalton of senior counsel, who appears on behalf of the accused, to telephone intercept evidence of conversations between the accused and Eleena Bakhos.

5. Ms Bakhos is a young woman who, as at mid-2013 was in a sexual relationship with the accused. The accused was married with children. Ms Bakhos refused to provide a statement to police. Under subpoena, she gave her evidence on a “Basha” inquiry on 9 September and 13 September 2016: Basha v R (1989) 39 A Crim R 337. Her materiality as a potential witness arises from other evidence in the Crown case concerning her interactions with the accused and Younes in the period during which police were investigating the two men in relation to the murder of the deceased. This evidence can be summarised as follows.

6. On 6 August 2013, police executed a search warrant at 151 Wycombe Street in Yagoona looking for Younes’ vehicle BU51NU, which was suspected of having been used in the shooting. A request was made of Younes under s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), as the owner of the vehicle, to identify the driver of BU51NU on 12 July 2013. On legal advice, Younes indicated that he wanted time to provide the relevant names. After leaving the police station, Younes met the accused and Ms Bakhos at the Sefton Playhouse Hotel.

7. On 4 September 2013, the accused and Ms Bakhos had an argument captured during a lawfully intercepted telephone call. She says to him, “Oh l’ll talk about those things that you don’t want me to say. Do you want me to keep going? Yeah?” The Crown concedes that this most likely refers to a threat to tell the accused’s wife of his extramarital affair, given that the relevant transcript includes Ms Bakhos saying the following to the accused:

“All right [sic], I think it’s time, I swear to God, I think it’s time I call Amanda. Well (unintelligible) I’m calling on private number and I think it’s we have to talk. I’m not, I’m not gonna be a snitch. But whatever she wants to ask, I’m gonna answer it…Yeah, dare me to (Foreign Language) ‘cause you made my blood boil.”

8. Amanda is the name of the wife of the accused.

9. On 16 October 2013, police attended Ms Bakhos’ home and spoke to her about her knowledge of the murder of the deceased. She was told the name of the deceased. She was also shown a picture of the deceased and an image of the silver Subaru WRX captured on CCTV in Thorpe Place, Abbotsbury. Police did not refer to the accused at all during their conversation with her. Ms Bakhos denied knowing anything about the murder.

10. There is evidence that police arrived at her premises at approximately 8:20am and left at about 8:40am. After they left, Ms Bakhos made a number of calls to the accused, which were lawfully intercepted, to arrange an urgent meeting.

11. She first called the accused at 9:20 am (“Call One”). The transcript of that call is as follows. (V1 is Ms Bakhos and V2 is the accused):

“V1:   Hello

V2:   Are you calling private?

V1:   Yeah, listen: you need to, like, come see me.

V2:   Why?

V1:   Because - it’s just important I need to see you, like, before you go anywhere. Like. (Pause) (Unintelligible)….

V2:   Yeah, but why?

V1:   I, I’ll tell you, like, I’ll talk to you when I see you.

V2:   Yeah, what’s it about, but? (Pause)

V1:   I’ll talk to you when I see you. (Pause)

V2:   Where are you?

V1:   I’m at home. I’ve been awake since the morning.

V2:   Yeah, why, what’s wrong, man? (Coughs) (Pause)

V1:   Are you that stupid? (Pause)

V2:   Yeah, I am.

V1:   Huh?

V2:   I am.

V1:   Okay. Like, now, like, I’ve already had my shower. I’m waiting for you to wake up. (Pause)

V2:   Meet me at the imjay.

V1:   Huh?

V2:   Meet me at the gym. (Pause)

V1:   I can’t. My mum is going a bit mental. (Pause)

V2:   What?

V1:   I said my mum’s going a bit mental.

V2:   Why?

V1   How long till you get there? I don’t even think that’s a good idea but, anyways.

V2:   Well I’ve got no lift. I’m getting dropped off there.

V1:   Huh?

V2   I’ve got to get dropped off there.

V1:   You need to drive and come see me, like, ASAP.

V2:   I can’t! (Pause)

V1:    Oh yeah. (Pause)

V2:    (Sounds Like) What, who’s there?

V1:    Huh?

V2:   Who’s there?

V1:   What do you mean, who’s there? (Long Pause) I’m talking to you - like, you’re wasting time. Like, I actually need to talk to you.

V2:   All right, bye then.

V1:   Huh?

V2:   Call you back, man. Bye. (Call concluded)” [emphasis added]

12. Some 37 minutes later, Ms Bakhos called the accused again and the following conversation took place (“Call Two”). (V1 is Ms Bakhos and V2 is the accused):

“V1:   Hello.

V2:   Yeah, where are ya?

V1:   Um, just dropping my aunty off at work in Campsie

V2:   What?

V1:    Huh?

V2:   Um, yeah, all right. I’m, I’ll just drop the kids off at swimming, then I’ll come.

V1:   All right, is it - maybe it’s not a good idea? I’m just thinking. Do you know…

V2:   (Unintelligible)

V1:    … what I’m trying to say? Huh?

V2:   All right, I’ll call you back in five.

V1:   No, but I need to anyways. Like, I need to…

V2:   All right. (Pause) I’ll call you back in two, I’ll call you back in two minutes. Two minutes.”

13. Four minutes later, Ms Bakhos called the accused back and had the following conversation with him (“Call Three”). (V1 is Ms Bakhos and V2 is the accused):

“V1:   Yo?

V2:   Yo. (Unintelligible)

V1:   Yeah?

V2:   What’s the go?

V1:   Ah, whereabouts are you? Do you want me to come to you or do you want to come to me?

V2:   All right, so I’ll get dropped off at the gym, then?

V1:   Yeah, but I don’t think that’s a good idea. You’re not understanding. Think, man. What’s wrong with you?

V2:   Wallah I’ve got no idea.

V1:   I’ll meet you at the (unintelligible).

V2:   Huh?

V1:   But how am I gonna call you (Foreign Language)?

V2:   Say it again, say it again?

V1:   But how am I gonna ring you when I’m there?

V2:   I’ll keep calling you.

V1:   Yallah, I’m leaving Campsie.

V2:   How long do you need?

V1:   All right, let me go past my house to tell my mum I’m gonna be out of the house for a little bit.

V2:   Oy, is everything all right man, or you –‘cause you’re freaking me out.

V1:    Bye! (Call concluded). [emphasis added]

14. Ten minutes later at 10:11am Ms Bakhos called the accused again and had the following conversation with him (“Call Four”). (V1 is Ms Bakhos and V2 is the accused):

“V1:    Hello.

V2:   Yeah, hey, you know this number?

V1:   What?

V2:   You know the number you have? You’re not, you’re never recharging it again. (Coughs) You’re getting rid of it.

V1:   Obviously. You rang off Amanda’s phone.

V2:   Not only that: I sent a message and you can’t delete the message. So that means the number’s just sitting in her phone.

V1:   What do you mean? Isn’t it an iPhone?   

V2:   It’s an iPhone, an iPhone 5. You can’t, you just can’t, you can’t delete messages. You know how you just swipe your finger and delete?

V1:   Yeah?

V2:   You can’t do it.

V1:   So she’s got this number?

V2:   Yeah. She goes to me, “Why do you care for?” Like, she goes to me, “Why do you want to delete it for?” She goes, “It’s not like you’re calling girls off my phone.” And I go, “Nah, but I just don’t want you to have my mate’s number.” (Pause) But she’s not gonna call you, but I’m saying (unintelligible)…

V1:   I was having anxiety when she called.

V2:   (Laughs) I know you were. That’s why I was like, “I should have just put it on private. I fucked up.”

V1:   Yeah, but then I was like, then I thought it’s probably you calling, ‘cause you called twice in a row, ‘cause you always tell me like not to worry. And I was like…

V2:   Yeah.

V1:    ….(sounds like) is this how you give it to me? ‘Cause I can’t be bothered for this as well now.

V2:   Um. (Pause) Yeah, well…

V1:   Whereabouts are you?

V2:   I’m at the gym. Do I go walk inside or not?

V1:   Um, I’m on Juno. (Pause) Is Amanda picking you up?

V2:   Yeah, probably, but not now. Like twelve or so.

V1:   What’s the time now?

V2:   Ten. (Pause)

V1:   Oh. (Pause) All right..

V2:   (Unintelligible) (Pause)

V1:   I need to change this phone and this number anyway.

V2:   Yeah, I know.

V1:   (Unintelligible)

V2:   But like. (Pause) (Coughs)

V1:   Well I’m waiting on you to get me a SIM and credit. (Pause) Weren’t you tripping out when I rang you this early? Did you, did anyone message you to call me or you?

V2:   Yeah, I just - why, why, why did I message before. Who the - what, I don’t know, why would someone message me to call you for? (Unintelligible)…

V1:   (Unintelligible) messaged, yeah.

V2:   What’d he say? He didn’t message me, right?

V1:   I messaged my sister.

V2:   Well she didn’t.

V1:   Huh?

V2:   Well she didn’t message.

V1:   Oh. And I was ringing you (laughs) early. Like, I go I don’t want to keep ringing because, like. (Pause)

V2:   Why, where were you this morning?

V1:   At home.

V2:   So what, you just woke up and started calling me?

V1:   No! I had, you know – halla I’ll tell you - um, I had two dreams in the past four days of you cheating on me, but the one I had today was, felt so real, oh my god. And then I got woken up from it.   

V2:   Yeah.

V1:   My brother comes in my room. He’s like, “Elena?” I’m like, “Yeah?” He’s like, “There’s cops at the door.” I’m like, “What are you on about?” He goes, “There’s detectives from homicide squad or something.” I’m like, I’m walking out of bed like a fuckin’ (laughs) (unintelligible).

V2:   Mm.

V1:   Mm. I was like, oh my god. And like my eyes were like (sounds like) dry. I’m like, “Youse want to talk to me?” They’re like, “You Elena?” I’m like, “Yeah.” “Like, yeah, can we please talk to ya?” I’m like, “Yeah, let me just brush my teeth. You can go see my backyard.” (Laughs) I fuckin’ lost it at my brother, man. (Pause) But yeah.

V2:   I’ll see you soon.

V1:   Huh?

V2:   See you soon.

V1:   All right. Bye.” [emphasis added]

15. At 10:53am, nearly 40 minutes later, Ms Bakhos telephoned the accused and had the following conversation (“Call Five”). (The accused is V1 in this call and V2 is Ms Bakhos):

“V1:   Hello.

V2:   Oy.

V1:   Yeah?   

V2:   I forgot to tell you something. Oh it, like, it might calm you down a bit. I full forgot. I remembered when I got here.

V1:   Yeah, that’s all right.

V2:   Where are you?

V1:   Halla, I’ll see you soon. Oh, not soon, maybe later. Um, I’m just gonna go see my brother.

V2:   Oh, well you’ve got to tell me so I know, because I know what to do

V1:   Why, what you doing today?

V2:   I was gonna go cemetery; I’ll just tell my mum to go without me. I just remembered now.

V1:   Mm.

V2:   Like, literally just remembered.

V1:   Yeah, all right. Um, if you want to come, come to Bankstown.

V2:   Again?

V1:   If you want.

V2:   Now?

V1:   Yeah.

V2:   Where?

V1:   Like, towards Centro, that way. Around there.

V2:   Can you send me like five dollars’ credit at least? So I can text you?

V1:   All right. I’ll call you man.

V2:   All right. So I’ll leave my house soon?

V1:   Leave it now, not soon.

V2:   All right, let me just go toilet.

V1:   All right, bye. (Call concluded)” [emphasis added]

16. At 11.09am, 16 minutes later, the accused called Ms Bakhos again. The following conversation took place (“Call Six”). (Ms Bakhos is V1 and the accused is V2. V3 is a male person in the background):

“V1:   Hello?

V2:   Yeah, where are ya?

V1:   Um, like Waterloo Road.

V2:   All right, um – where Waterloo? (Conversation with person in background) - (Sounds Like) You going inside?   

V3:   Yeah, (unintelligible)…   

V1:   What?

V2:   All right, all right.

V3:   (Conversation with person in background - (Sounds Like) You want me to go down, or? Are you going down or what are you gonna do?

V2:   (Sounds Like) yeah I’ll go there now. Ah, where will I see ya?

V1:   Huh?

V2:   Where, where, where you gonna go?

V1:   What do you mean? You told me to come to you!

V2:   Okay, you know where I’ll meet ya? Go to - stay there, stay Greenacre. I’ll come to you now. Go to the servo at Al Aseel. Bye

V1:   Um, bit red-hot. Don’t want to go there.

V2:   Why?

V1:   ‘Cause I’ll go to the backstreet of Al Aseel.

V1:   All right, bye. (Call concluded)”

17. Shortly afterwards, at 11.28am, the accused is observed by police to be in the company of Ms Bakhos in Pandora St, Greenacre.

18. At 2.20pm, Ms Bakhos is observed to be in the company of both the accused and Younes at the Three Swallows Hotel in Yagoona.

19. The last call between the accused and Ms Bakhos is at 10:56pm that evening. It is a short call in the following terms (“Call Seven”). (V1 is the accused and V2 is Ms Bakhos):

“V1:   What man, what man? I can’t talk (unintelligible)…

V2:   I’m gonna call – no, listen, I’m gonna call someone right now and you know if you get rocked? Yeah, I’m gonna ask them. You know if you get rocked, I’m telling you - ah, you, you know if you get rocked?

V1:   Listen here, fuck: all right, stop calling my fuckin’ phone. I’m home, man. Fuck off, man.” [emphasis added]

Evidence of Eleena Bakhos on the voir dire

20. Ms Bakhos agreed that she was in a relationship with the accused for part of the year in 2013. She found out that the accused had been charged with involvement in the murder by being told by a friend and by seeing news items. She gave evidence that she could not remember the conversation that she had with police on 16 August 2016. She could remember only that she was asked whether she knew the deceased and that police showed her a photo of the deceased. She told them that she did not know the deceased. She agreed the name rang a bell to her when she later read a news item about the murder of the deceased. Ms Bakhos said that the reason that she could not remember being questioned by the police about someone’s murder is that she has moved on with her life and does not remember parts of her life back then.

21. After the police came to her house, Ms Bakhos called the accused to tell him what happened because she used to tell him everything that happened in her life. The phone calls arranging to meet with him that day were made because she used to “hang out” with the accused all the time and it would have been like any other normal day. She repeatedly said that was only because he was her best friend with whom she spoke all the time and to whom she used to tell everything.

22. On a number of occasions, Ms Bakhos claimed that she could not remember what happened three years ago. She did not give an explanation as to why she could not remember what must have been extraordinary events, apart from that she has moved on with her life. Ms Bakhos gave the impression of being a very emotional, reluctant and unwilling witness.

23. The Crown Prosecutor was given leave under s 38 of the Evidence Act 1995 (NSW) to cross-examine the witness on the issue of whether she was doing her best to remember the events of 16 August 2016, both in relation to the police coming to her house and phone call conversations between her and the accused after the police came that day.

24. Ms Bakhos explained some of the calls on 16 August 2016 more specifically as follows.

25. In relation to Call One at 9:20 am (extracted above at [11]), Ms Bakhos stated that she called the accused to make arrangements to meet up because she was stressed and because she was accustomed to telling him everything. She wanted to tell her “best friend” that police had come to her house. However, she did not tell the accused why she wanted to see him then because they used to speak in a code if there were people around her. She comes from a strict family and that morning she was at home and would have been around her family. She mentioned it to him when she was alone, some 40 minutes later.

26. In relation to Call Two at 9:57 am (extracted above at [12]), Ms Bakhos explained that there were still people around her; she was in the car dropping her aunt off at work in Campsie.

27. As for Call Three at 10:01 am (extracted above at [13]), she gave evidence that she and the accused spoke more about arrangements to meet up that day simply because it would have been like any other normal day and she used to hang out with him all the time. There would still have been someone in the car with her.

28. As for Call Four at 10:11 am (extracted above at [14]), Ms Bakhos stated that at this time she would have been on her own and that she was on her way to see the accused. She told the accused about the police coming that morning because he was her best friend and she told him everything. The accused said nothing and offered no assistance or advice.

29. As for Call Five at 10:53 am (extracted above at [15]), Ms Bakhos explained that she had briefly seen the accused at the gym by then. She gave evidence that the explanation provided in relation to telling the accused that she forgot something that “might calm [him] down a bit” would have been something of a sexual nature and unrelated to the police coming to her house that morning.

20. The topic of the police coming to her house was never brought up or mentioned again. It was not brought up in the conversation when she met with the accused and Younes at the hotel in Bankstown that afternoon. Ms Bakhos’ concern dissipated when she spoke to her mother, who told her there was nothing to worry about.

21. As for Call Seven at 10:56 pm (extracted above at [19]), Ms Bakhos explained that the expression “rocked” meant to prove somebody wrong. She gave evidence that she and the accused were probably talking about gossiping and it had nothing to do with the topic of police coming to her house that morning.

Objection to the admissibility of the evidence

32. Mr Dalton submitted that the conversations extracted above at [11] – [19] do not pass the threshold of relevance: s 55 of the Evidence Act.

33. He submitted that Ms Bakhos is not a person charged with being part of a joint criminal enterprise. She is a witness and thus her knowledge is irrelevant. The accused cannot be held responsible for what her state of mind was on 16 October 2013. Further, any relevance that her behaviour might have would be based on speculation rather than inference. There is no evidence as to the terms of any code Ms Bakhos used in her telephone calls with the accused. Nor is there any clear reason why she was upset. He submitted that Ms Bakhos was generally highly emotional at the time of her relationship with the accused. For example, in in Call Four (see [14] above), she seems to be upset not only about the police arriving at her home that morning, but also about a dream she had about the accused being unfaithful to her.

34. Any concern on the part of the accused in all of the telephone calls is explicable as related to fear of his wife learning of his infidelity. The Crown could not rely upon the calls as disclosing a consciousness of guilt on the part of the accused. The Crown seeks to rely upon lies told by Ms Bakhos to infer that she may have been told things by the accused regarding his potential involvement or the police suspicion of his potential involvement in the offence. That is not admissible against the accused.

35. Mr Dalton submitted that none of the accused’s responses are inculpatory. He did not demonstrate concern with respect to what Ms Bakhos said, including about the police visiting her. The only things that he was upset about were that he accidentally called Ms Bakhos on his wife's phone and that Ms Bakhos called him at night when he was at home.

36. Finally, Mr Dalton submitted that, even if the calls were found to be relevant, they should be excluded under s 137 of the Evidence Act because their probative value is outweighed by the danger of unfair prejudice to the accused. The material would be misused in the sense that Ms Bakhos’ knowledge would be used to infer the accused’s guilt. This could not be cured by directions.

Submissions on behalf of the Crown

37. The Crown Prosecutor submitted that the inference to be drawn from the conversations was that Ms Bakhos knew that the accused was involved in the murder because he had told her. He submitted that the relationship between Ms Bakhos and the accused involved a high degree of contact during the relevant time and, as the witness said, she spoke to him "about everything". The inference that the jury would be entitled to draw in those circumstances is that the accused admitted the murder to her.

38. Police questioned Ms Bakhos about the murder of the deceased without mentioning the accused’s name. She then telephoned the accused and spoke in code about wishing to see him. An available inference is that she knew the police request of her concerned the accused and that the source of that knowledge or information was the accused himself. It was conceded that there were no particular utterances from Ms Bakhos upon which the Crown could rely to assert that she knew that the accused was involved in the murder.

39. The Crown Prosecutor accepted that there were other inferences available, in particular that she was not aware of the accused’s involvement in the murder but did have knowledge that police suspected the accused, or his friend Younes. An inference that she knew police suspected the accused or Younes would have no probative value.

40. The Crown Prosecutor distinguished between speculation and one of a number of inferences open on the evidence. He relied upon the decision in R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 in support of the relevance of competing inferences to the evaluative decision required by s 137 of the Evidence Act. The Crown Prosecutor also relied upon the decision in R v Hillier (2007) 228 CLR 618 on the issue of assessing relevance in the context of a circumstantial case.

41. It was conceded that none of the accused’s answers is in itself inculpatory. Rather, the Crown Prosecutor submitted that the accused did not seem to understand what Ms Bakhos was saying until she mentioned detectives from the Homicide Squad. It was at that point that the accused changed the tone in which he was speaking, saying "Oh, I will see you soon".

42. The intercepted telephone calls were played in Court on the voir dire and I had the opportunity to have regard to the tone and manner of the conversations between the accused and Ms Bakhos.

Consideration

Is the evidence relevant?

43. The first objection by Mr Dalton on behalf of the accused to the evidence of Ms Bakhos is on the basis of a lack of relevance. Section 55(1) of the Evidence Act relevantly provides:

“Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

44. Section 55 of the Evidence Act was recently considered by the High Court in IMM v The Queen (2016) 330 ALR 382; [2016] HCA 14 (“IMM”). The majority (French CJ, Kiefel, Bell and Keane JJ) observed the following at [38]-[39]:

“By s 55, evidence is relevant if it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.” There can be no doubt that the reference to the effect that the “could” have on proof of a fact is a reference of the capability of the evidence to do so. The reference to its “rational” effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact.

The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words “if it were accepted”, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury.” In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.”

45. The task of determining whether evidence is relevant requires an assessment of the capability of evidence rationally to affect the assessment of the probability of the existence of a fact in issue. That exercise is to be undertaken on the assumption that the jury will accept the evidence, an assumption that is compelled by the words “if it were accepted” in s 55: IMM at [49]. It is not to role of the trial judge, at the point of assessing relevance, to enquire into the weight that a jury may give to evidence. A piece of circumstantial evidence that gives rise to an inference consistent with guilt is probative unless that inference is preposterous or incredible in the sense explained by the majority in IMM at [39].

46. Taken at its highest, does the telephone intercept evidence have the capability rationally to affect the assessment of the probability of the existence of a fact in issue; namely, whether the accused murdered the deceased? In this case the assessment of whether the telephone conversations set out above at [11] to [19] are relevant is complicated by the fact that they give rise to multiple available inferences. Some of those inferences are more likely than others.

47. The inference that the Crown invites the jury to draw from the telephone conversations is that Ms Bakhos immediately telephoned the accused after police spoke to her at her home because she knew that he was involved in the shooting. She knew this because, on her evidence, she met with him every day. I accept that this inference is available from the conversations, having regard to their timing and context and to the evidence given by Ms Bakhos about her relationship with the accused. It is not the only available inference.

48. A second inference is that Ms Bakhos telephoned the accused after police spoke to her at her home because she suspected that he was involved in the shooting without having any direct knowledge of his involvement.

49. A third inference is that Ms Bakhos telephoned the accused after police spoke to her at her home because, although she had no suspicions concerning his involvement, she was aware that police suspected him and wanted to pass this information on. This inference readily arises from the fact that, on 6 August 2013, she met with the accused and Younes immediately after police issued the request under s 14 of LEPRA on Younes. From that evidence it can readily be inferred that Ms Bakhos was aware that police suspected Younes and potentially the accused.

50. A fourth inference is that Ms Bakhos telephoned the accused after police spoke to her at her home because she recognised Younes’ vehicle when shown the photograph by police and, knowing Younes to be a friend of the accused, wished to advise the accused of this.

51. A fifth inference that arises from the telephone calls between Ms Bakhos and the accused on 16 October 2013 is that suggested by Ms Bakhos in her evidence before me. Her explanation is that she and the accused met every day and meeting with him on that day was nothing unusual. To explain the urgency in her voice, she proffered the explanation that she comes from a strict family and that her family were concerned that police attended her home that day. Her evidence was that, after she had told the accused about the matter when she met with him that morning, they never discussed it again. Her explanation for not being willing to discuss any of this over the telephone was again that she comes from a strict family and did not want to discuss it at home.

52. For my part, the explanation that Ms Bakhos provided is the most unlikely inference. Ms Bakhos was a very unimpressive witness. When she first gave evidence on 9 September 2016, she made no genuine attempts to try to recollect events that occurred only three years ago. By the time she gave evidence on 13 September 2016, she had clearly had time to consider her evidence and was less evasive in her answers. Despite this, many of the answers that she gave were inherently implausible. It is of significance that she repeated several times that there was nothing unusual about her meeting with the accused that day as he was her “best friend” and she met with him daily and told him everything.

53. In addition to the Crown relying upon the conversations on the basis referred to above at [37], parts of the telephone calls could be relevant in other ways.

54. In Call Four (extracted above at [14]), Ms Bakhos informs the accused that detectives from the Homicide Squad had been to her home. His reaction was not to enquire as to why they would attend her house. Rather, he says nothing and then meets her in person. There was evidence on the voir dire to suggest that the accused knew that his telephone calls were being intercepted. An earlier call made on 14 September 2013 between the accused and a friend referred to only as “Nada” includes a reference to the accused’s mobile phone being seized and “aptayed” (“Pig Latin” for “tapped”). In circumstances where it could be inferred that the accused either suspects or knows that his telephone calls are being intercepted, he asks no questions nor makes any enquiries of Ms Bakhos at that time.

55. Call Five (extracted above at [15]) takes place immediately after Ms Bakhos met with the accused in person. It is possible to infer that she told the accused what police said to her and that he was concerned by it. She then, after leaving him, remembers something about the conversation with police that will ease his mind that she forgot to tell him when she saw him in person. Her explanation of the words “I forgot to tell you something. Oh it, like, it might calm you down a bit” as being something “sexual” is implausible having regard to the context, timing and tone of that call.

56. Ms Bakhos’ explanation of Call Seven (extracted above at [19]), during which she makes reference to the accused possibly getting “rocked”, is also somewhat implausible. She did not suggest that it was a threat to tell the accused’s wife about his extramarital affair, so that otherwise available inference can be put to one side. Rather, she said it related to “gossip”. I have listened to this conversation and formed the view that Ms Bakhos sounds upset, angry and threatening in it. The tone and content of the call are inconsistent with its being a conversation about “gossip”. This leaves the more likely inference that the words therein concern his potential arrest. The available evidence indicates that Ms Bakhos is aware that police suspect the accused, especially in the light of the events of that day.

57. Overall, I am of the view that the last three calls (Calls Five, Six and Seven) are relevant. Taking the interpretation of the calls proposed by the Crown at its highest, their tone, contents and context could rationally affect the jury’s assessment of the probability of the existence of a fact in issue in the proceedings, namely, whether the accused was involved in the murder of the deceased.

58. I have taken into account that the case against the accused is a circumstantial one in the nature of a “strands in a cable” case: Shepherd v R (1990) 170 CLR 573 at 579. This means that the jury will be required to consider the evidence in the Crown case as a whole and not by a piecemeal approach to each particular circumstance: R v Hillier at [46].

Is the probative value of the evidence outweighed by the danger of unfair prejudice?

59. Although I have formed the view that at least some of the calls are relevant, that is not the end of the matter. Mr Dalton submits in the alternative that I would exclude the evidence under s 137 of the Evidence Act. Section 137 provides that:

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

60. In applying s 137 of the Evidence Act, I am required to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused. “Probative value” is defined in the Dictionary to the Evidence Act as:

“The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

61. As the High Court confirmed in IMM, assessment of probative value for the purposes of s 137 does not require evaluation of the credibility, reliability or weight of evidence, those being matters properly left to the jury if the evidence be admitted. The plurality in IMM noted with respect to s 137 at [50] that:

“It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by JD Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is a high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach with the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence.”

62. The approach of the New South Wales Court of Criminal Appeal confirmed by the High Court in IMM is that contained in R v Shamouil (2006) 6 NSWLR 228; [2006] NSWCCA 112 and R v XY (2013) 84 NSWLR 363; [2013] NSWCCA 121.

63. The evidence that the present application concerns does not raise questions of reliability or credibility. Although the evidence would be adduced through Ms Bakhos, whose credibility is a live issue, the recordings of the intercepted calls and related transcripts already exist. Their probative value does not turn on issues of credibility or reliability but, rather, on which of a number of competing inferences the jury is likely to draw from the contents of the calls and from the surrounding circumstances.

64. There is a line of authority in New South Wales in support of the proposition that, although questions of reliability and credibility are not to be taken into account when applying s 137 of the Evidence Act, alternate explanations or competing inferences arising from the material are able to be taken into account: DJS v R; NS v R [2012] NSWCCA 9 at [8], [11], [55] - [56], [135] and [136]; R v XY at [2], [42], [86] - [87], [171], [175]; and R v Burton at [161] - [171].

65. The High Court in IMM did not address the question of whether it is permissible to take into accounting competing inferences when assessing probative value for the purposes of s 137 of the Evidence Act. The New South Wales Court of Criminal Appeal (Hoeben CJ at CL, Hall and Button JJ agreeing) held in R v GM [2016] NSWCCA 78 that, post-IMM, it remains permissible to have regard to competing inferences when considering the probative value of evidence.

66. In the present case, there are a number of competing inferences that arise from the telephone conversations between Ms Bakhos and the accused. I have had regard to all of the available inferences referred to above at [47] – [51] in my assessment of the extent of the capacity of the evidence rationally to affect the assessment of the probability of the existence of a fact in issue. I have formed the view that the existence of multiple inferences significantly weakens its probative value.

67. I am also satisfied that there would be a danger of unfair prejudice to the accused should the evidence be admitted. There is a real risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at [91]. As Mason P observed in Colby v The Queen[1999] NSWCCA 261 at [97]:

“The focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case ...”.

68. The Crown Prosecutor properly conceded that any suspicion held by Ms Bakhos is not relevant. Such evidence is opinion evidence and thus inadmissible under s 76 of the Evidence Act. Rather, the Crown Prosecutor submitted that the jury would be invited to draw the inference that Ms Bakhos was not merely suspicious of the accused, but that she knew for a fact that he was involved in the murder because, due to their close relationship, he had told her.

68. The jury, if they were to hear Ms Bakhos give her frankly implausible explanations for the calls, may well form the impression that she is lying because she suspects that the accused was involved in the murder. The jury may then impermissibly reason that, if Ms Bakhos suspects the accused, then so should they. Further, there is a real risk that the jury would more readily draw an inference that there is something suspicious about the calls themselves because of the implausible explanations for them that Ms Bakhos provided. It is in this line of impermissible reasoning that the danger of unfair prejudice to the accused lies.

69. I am satisfied that there is a danger that the jury would use this evidence in a manner not logically consistent with the facts in issue. I consider that the danger of unfair prejudice outweighs the probative value of the evidence and therefore I must refuse to admit it.

70. In excluding this evidence, I have had regard to the fact that the Crown case is circumstantial and that all evidence should be viewed in that context. Although material might not be significant on its own, it can gain in significance when viewed against the Crown case is a whole. The difficulty is that I am not of the view that directions could overcome the danger of unfair prejudice that would flow from the tender of this evidence.

71. Mr Dalton accepted during oral submissions that the Crown would still be permitted to lead the evidence showing the chronology of events: the request being made of Younes on 6 August 2013; his then meeting with the accused and Ms Bakhos; police attending Ms Bakhos’ home on 16 October 2013; and her then meeting with the accused and Younes.

ORDER

73. The telephone intercept evidence with respect to the conversations between the accused and Eleena Bakhos on 16 October 2013 is excluded.

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Amendments

18 January 2017 - Publication restriction note removed

Decision last updated: 18 January 2017