R v Barakat (No 6)

[2016] NSWSC 1373

Supreme Court

New South Wales

Medium Neutral Citation:	R v Barakat (No 6) [2016] NSWSC 1373
Hearing dates:	16 September 2016
Date of orders:	19 September 2016
Decision date:	26 September 2016
Jurisdiction:	Common Law - Criminal
Before:	N Adams J
Decision:	Evidence of the MMS file received by the accused on 12 July 2013 is inadmissible.
Catchwords:	EVIDENCE – shooting murder – where accused received video message showing a news items about shooting shortly after it occurred – whether evidence relevant
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	R v Chin (1985) 157 CLR 671 R v Soma (2003) 213 CLR 299
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) Kiki Kyriacou Lawyers (Accused Barakat)
File Number(s):	2013/00327619
Publication restriction:	Nil

Judgment

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.

2. A jury was empanelled on 20 September 2016. A number of pre-trial applications were heard and determined prior to the empanelment of a jury.

3. On 16 September 2016, I considered an objection made by Mr Dalton SC, who appears for the accused, to material sought to be adduced in the Crown case. After hearing submissions, I ruled that the evidence was not admissible and indicated that I would provide my reasons for doing so at a later date. These are my reasons for excluding the evidence

The MMS message

4. The evidence adduced in the trial so far discloses the following chronology of events.

5. At about 6:30am on 12 July 2013, CCTV footage in Thorpe Place, Abbotsbury captures a silver Subaru WRX, which on the Crown case bears registration number BU51NU (registered to Younes), driving past 12 Thorpe Place and parking a short distance from the house. The car is observed to be stationary, with its engine off, between 6:30am and 10am. No one is seen getting in or out of the car in that period of time.

6. Shortly after 10am, a person gets out of the car via the front passenger door and runs towards 12 Thorpe Place. He is dressed in a dark hooded top, dark track pants and white sneakers. At around 10:02am, the person runs back to the waiting car, enters through the front passenger door and is driven off by somebody else at speed.

7. CCTV shows the accused returning Younes’ silver Subaru WRX registration number BU51NU to Younes’ home at 151 Wycombe Street in Yagoona at about 10:30am on 12 July 2013. He leaves something in the letter box, which on the Crown case is a set of keys. He then runs away in the direction of Rock Street where he resides. On the Crown case, the time between the murder at 10:00am and the return of the car at 10:30am is approximately the time required to travel from the scene of the murder in Abbotsbury to Wycombe Street in Yagoona.

8. When the accused was arrested on 30 October 2013 police seized his mobile telephone. It revealed that, shortly after 11am on 12 July 2013, an unknown person sent the accused a news bulletin from the 11am Channel 10 news as a multimedia file (“MMS file”) describing that there had been a shooting in Western Sydney that morning and that the victim was in serious condition. The news bulletin did not name the deceased, or the suburb in which the shooting occurred. There was no text in the message; only the MMS file.

9. The Crown seeks to rely upon the fact that this recording was found in the accused’s mobile telephone at the time of his arrest over three months after the shooting as evidence implicating him in the murder of the deceased. The Crown acknowledges that there is no evidence as to who sent the MMS file to the accused, nor is there any evidence that the accused ever opened the file. The fact that the message was still in the accused’s inbox means, obviously, that the accused did not delete the message after it was received.

10. The Crown relied upon evidence showing that police had examined the relevant message by way of a Cellebrite device, but that the current state of technology is such that they were unable to identify whether the accused opened or viewed the file. “Cellebrite” devices are used by police to extract data from mobile telephones.

11. Mr Dalton objects to the material on the basis that it lacks relevance.

Consideration

12. The question for determination is whether the evidence is relevant. 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.”

13. 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. The question is whether, taken at its highest, the MMS file in the accused’s mobile telephone over three months after the shooting has the capability rationally to affect the assessment of the probability of the existence of a fact in issue; namely, whether the accused was either the shooter or the driver of the vehicle used in Thorpe Place, Abbotsbury on 12 July 2013.

14. It goes without saying that it is highly suspicious that someone sent this message to the accused within an hour of the shooting. The coincidence of the accused receiving and possessing such a news item in circumstances where he had no knowledge of the murder whatsoever seems extraordinary. Despite this, the Crown is unable to identify a basis upon which it has the capability to rationally affect the assessment of the probability of the existence of a fact in issue; namely, whether the accused was either the shooter or the driver of the vehicle on 12 July 2013 when the shooting took place. The evidence at its highest shows that some unknown person thought that the accused would be interested in the particular news story.

15. When I enquired of the Crown Prosecutor during legal argument what he would say to the jury about the message in his closing address if I admitted it into evidence, he conceded that the precise nature of its relevance posed some difficulty. Despite this, the Crown pressed for the admissibility of the file nonetheless on the basis that it showed some connection between the accused and the news item.

16. If the police evidence had shown that the accused had searched for such a news item online at approximately 11am and found and accessed it, then such evidence would be relevant and admissible on the basis that it would show knowledge on the part of the accused to the fact of the murder prior to any publicity of it. That is not this case.

17. Even if the news item had been accessed by the accused at some later date, it would have been of relevance as it would have shown an interest by the accused in the shooting in circumstances where there is no evidence that the accused knew the deceased. But there is no evidence that the accused made any such search.

18. Similarly, the evidence could have become relevant had the identity of the person who sent the MMS file to the accused been known and that person could have been questioned about why the message was sent. That did not occur.

19. The evidence of the MMS file might also have been relevant had the accused made any response to it by way of reply text. Not only is there no evidence that the accused responded in any way to the text, there is no evidence to suggest that he even opened the file and looked at it.

20. On the available evidence, the inference to be drawn is that some unknown person thought that the accused might be interested in this news item; it is not evident whether this was because he or she knew or thought that the accused was involved or for any other reason. The evidence is relevant to the state of mind of that other person but cannot be relevant to the state of mind of the accused, given the state of the evidence described above.

21. On this basis, although it is highly suspicious that this news item was sent to the accused such a short time after the shooting, I am not satisfied that it is relevant and hence admissible.

22. I do not propose to permit the Crown to adduce this evidence in the Crown case. Despite this, if the accused were to give evidence in his case I would entertain an application by the Crown at that time to be permitted to ask questions of the accused about it in cross examination. I would not consider that to be consistent with the Crown splitting its case given that the Crown sought to lead this evidence in the Crown case: R v Chin (1985) 157 CLR 671; R v Soma (2003) 213 CLR 299.

ORDERS

23. Evidence of the MMS file received by the accused on 12 July 2013 is inadmissible.

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Decision last updated: 09 December 2016