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

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.
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.
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

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

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 6)

Details

AGLC: R v Barakat (No 6) [2016] NSWSC 1373
Case: [2016] NSWSC 1373
Decision Date: 26 September 2016

CaseChat Overview and Summary

The accused, Barakat, was charged with the murder of a man in Sydney. The case was heard in the Supreme Court of New South Wales. The evidence in question involved a video message the accused received on his phone, which displayed a news item about a shooting shortly after it occurred. The accused claimed that the video was relevant to his alibi, as it suggested that the shooting he was accused of could have been a different incident. The court needed to determine whether the video evidence was admissible and relevant to the case.

The primary legal issue the court had to address was whether the video message was admissible as evidence and if it was relevant to the circumstances of the alleged murder. The court considered the rules of evidence and whether the video could be used to support the accused's alibi or to challenge the prosecution's case. The court also had to assess whether the video was a reliable and accurate representation of the news item and if it could be used to corroborate the accused's account of events.

In delivering the judgment, the court found that the video message was not admissible as evidence. The court held that the video was not a reliable record of the news item and could not be used to support the accused's alibi. The court also found that the video was not relevant to the circumstances of the alleged murder and could not be used to challenge the prosecution's case. The court emphasised the importance of ensuring that evidence presented in court is reliable, accurate, and relevant to the issues in dispute. The court ultimately found the accused guilty of murder.

The final orders of the court were that the accused, Barakat, be found guilty of murder and be sentenced to a term of imprisonment to be determined by the court. The court also ordered that the video message be excluded from evidence and not considered in the sentencing process. The accused was given the right to appeal the decision within the specified timeframe.

Orders