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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Barakat (No 5)

Details

AGLC: R v Barakat (No 5) [2016] NSWSC 1313
Case: [2016] NSWSC 1313
Decision Date: 16 August 2016

CaseChat Overview and Summary

In the case before the Court, the respondent, Barakat, was charged with drug trafficking offences. The prosecution sought to rely on intercepted telephone conversations between the respondent and his then girlfriend as evidence in their case. The respondent challenged the admissibility of this evidence, arguing that it was irrelevant and prejudicial. The matter was heard in the Supreme Court of New South Wales.

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