R v Fitzpatrick (No 2) - [2019] NSWSC 836

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Fitzpatrick (No 2) [2019] NSWSC 836
Hearing dates: 1; 2 July 2019
Date of orders: 02 July 2019
Decision date: 02 July 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
1. The material constituting Exhibit Voir Dire 1 is admissible;
2. The nail package depicted the in photographs annexed to Exhibit Voir Dire 4 is admissible.

Catchwords:
ADMISSIBILITY OF EVIDENCE – determining admissibility of “bomb documents bundle” and nail package – assumption as to admissibility that evidence will be accepted – circumstantial nature of case – whether evidence which may be weak in isolation may form cogent part of Crown case when taken with other circumstances – held evidence admitted.

TENDENCY EVIDENCE – whether evidence that is capable of being seen as tendency evidence requires the evidence be dealt with for admissibility purposes as tendency evidence – held evidence going to state of mind of accused is not always tendency evidence – held evidence capable of satisfying the jury that certain items were in the accused’s possession may admissible as to state-of-mind of accused.
MISUSE OF EVIDENCE – misuse of evidence - whether in admitting evidence there is a danger that a jury may give undue weight to evidence for purposes other than the reasons for which it was admitted – held such risk can be mitigated through appropriate directions to jury and by providing the proper approach required for deciding a circumstantial case – evidence admitted.
Legislation Cited: Evidence Act 1995 (NSW), ss 94 – 101
Cases Cited: Burrel v Regina [2009] NSWCCA 163; 196 ACrim R 199
Chamberlain v The Queen (No 2) (1993) 179 CLR 44; [1993] HCA 71
Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
Strachan v R [2017] NSWCCA 322
Category: Procedural and other rulings
Parties: Regina (Crown)
Paul John Fitzpatrick (Accused)
Representation:
Counsel:
J. Tunks (Crown)
D. Price (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Conaghan Lawyers (Accused)

File Number(s): 2017/376874
Publication restriction: Yes - publication restriction until the completion of the matter.

Judgment

After conducting a voir dire into the admissibility of certain evidence on 1 July 2019 in advance of the empanelment of the jury in this matter, on 2 July 2019 I made the following ruling:

Ruling:

For reasons to be published, under s 192A Evidence Act 1995 I rule that:
1. The material constituting Exhibit Voir Dire 1 is admissible; and
2. The nail package depicted in the photographs annexed to Exhibit Voir Dire 4 is admissible.

What follows are my reasons for this ruling.

The material the subject of the ruling was seized during the execution of a search warrant at premises occupied by the accused and another person, over three days in October 2015. The material the subject of ruling 1 is a bundle of 3 documents seized on 13 October 2015. These documents are…

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 Fitzpatrick (No 2)

Details

AGLC: R v Fitzpatrick (No 2) [2019] NSWSC 836
Case: [2019] NSWSC 836
Decision Date: 02 July 2019

CaseChat Overview and Summary

The case of R v Fitzpatrick (No 2) involved a criminal trial where the primary issue was the admissibility of certain pieces of evidence, including a bundle of documents referred to as the "bomb documents bundle" and a nail package. The dispute was heard and determined by a court in Australia. The accused, Fitzpatrick, faced charges related to terrorism and the possession of items intended for use in committing a terrorist act. The central legal issues revolved around whether the evidence could be admitted, whether it was tendency evidence that required special consideration, and whether the risk of the jury misusing the evidence outweighed the benefit of its admission.

The court was tasked with deciding whether the "bomb documents bundle" and the nail package could be admitted into evidence and whether they could be considered as part of a cohesive narrative that supported the prosecution's case against Fitzpatrick. The court considered the circumstantial nature of the evidence and the potential for each piece of evidence, though perhaps weak in isolation, to form a significant part of the overall Crown case when combined with other evidence. The court concluded that the evidence, despite being circumstantial and potentially weak on its own, could be admitted as it might assist in demonstrating the accused's state of mind and possession of the items in question. The court also held that evidence regarding the state of mind of the accused was not necessarily tendency evidence and could be admissible if it satisfied the jury that certain items were in the accused's possession.

The court found that the risk of the jury misusing the evidence could be mitigated through appropriate directions and by providing guidance on the proper approach to be taken in assessing a circumstantial case. The court determined that these measures would help ensure that the jury considered the evidence for the correct purposes. As a result, the evidence was admitted, and the trial proceeded with the contested items being considered as part of the Crown's case. The court's decision emphasised the importance of proper judicial direction and the ability to combine circumstantial evidence to form a compelling case against the accused.

Orders