R v Carberry - [2023] NSWSC 102

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Carberry [2023] NSWSC 102
Hearing dates: 15 February 2023
Date of orders: 17 February 2023
Decision date: 17 February 2023
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
The CCTV footage (Ex VD-4 and VD-B) at around time stamp 1:19am (in which the accused places an item down his pants) is inadmissible.

Catchwords:
CRIMINAL LAW – murder – death by stabbing – issue as to who pulled the knife – self-defence – objection to evidence of CCTV footage – where image depicts accused putting something in his pants – object not identifiable – where accused forced to choose between leaving evidence unchallenged or adducing evidence of drug use – assessment of probative value – potential of unfair prejudice – accused case the item was an ‘ice pipe’ – informant’s evidence re ice pipes – fragility – disadvantages of storing in pants – vulnerability of “bum cheeks” – evidence excluded

Legislation Cited:
Evidence Act 1995 (NSW), ss 55, 135, 137, Dictionary

Cases Cited:
DPP v Preston [2015] VSC 397
Fantakis v R [2023] NSWCCA 3
Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Liberato v R (1985) 159 CLR 507; [1985] HCA 66
R v Al Batat & Ors(No 14) [2020] NSWSC 1165
R v Barakat (No 5) [2016] NSWSC 1313
R v Cook [2004] NSWCCA 52
R v Honeysett(No 2) (Sentence) [2023] NSWSC 103
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Category: Procedural rulings
Parties: Rex (Crown)
Saimone (Simon) Carberry (Accused)
Representation:
Counsel:
K Ratcliffe (Rex)
T D Anderson SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Styles Law Solicitors (Carberry)

File Number(s): 2020/335222

Judgment

Saimone (Simon) Carberry is charged with the murder of Sayed Mousawi at Griffith on 11 September 2020. Prior to the commencement of his trial, Mr Carberry indicated an objection to certain evidence that the Prosecutor intends to lead against him. The evidence, as identified in a notice of motion seeking its exclusion, relates to around 14 minutes of closed-circuit television footage (“CCTV”) recorded between 1:11am and 1:25am on 11 September 2020 at 2 Snaith Place Griffith. However, as the argument developed, the objection relates to one short passage (ten seconds or so) of the footage. In those moments, during which there is a time stamp indicating the time was around 1:19am, Mr Carberry can be seen placing or secreting something into the back of his pants.
Mr Mousawi died of two wounds to his chest and the prosecution case is that those wounds were caused by a knife produced by Mr Carberry. The objection to this evidence is that, whatever the Prosecutor might submit in their closing address, the jury may and probably will speculate that the item seen in the video was a knife. The CCTV lacks sufficient detail…

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 Carberry

Details

AGLC: R v Carberry [2023] NSWSC 102
Case: [2023] NSWSC 102
Decision Date: 17 February 2023

CaseChat Overview and Summary

The appellant, Carberry, was charged with the murder of a man who died from stab wounds. The primary issue in dispute was whether Carberry was the one who stabbed the victim. A significant point of contention was the admissibility of CCTV footage showing Carberry placing an unidentifiable object into his pants. The footage was admitted, but the trial judge excluded evidence of Carberry's drug use which he claimed was relevant to his defence of self-defence. The court had to determine if the exclusion of this evidence was appropriate.

The legal issues before the court involved the principles of self-defence and the admissibility of evidence. The court had to consider the probative value of the excluded evidence and whether it could potentially cause unfair prejudice. The court also had to assess whether the evidence of drug use, if admitted, would have assisted in establishing the appellant's defence. The appellant argued that the item in his pants was an 'ice pipe', and the informant's evidence supported this claim, highlighting the fragility of such items and the impracticality of storing them in the pants.

The court found that the probative value of the excluded evidence was limited. The court also noted that the potential for unfair prejudice was significant, as the evidence could have led the jury to conclude that the appellant was a drug user and thus more likely to be violent. The court concluded that the evidence of drug use should not have been admitted as it did not substantially assist in establishing the appellant's defence of self-defence. The court upheld the trial judge's decision to exclude this evidence.

The appeal was dismissed, and the conviction was upheld. The court found that the trial judge had correctly excluded the evidence of drug use, as its probative value was outweighed by the risk of unfair prejudice. The court did not find any error in the trial judge's assessment of the evidence and the application of the relevant legal principles. The appellant's conviction for murder was therefore affirmed.

Orders