R v Fitzpatrick (No 6)

[2019] NSWSC 977

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fitzpatrick (No 6) [2019] NSWSC 977
Hearing dates:	1; 2; 3; 4; 5; 8; 9; 10; 11; 12; 15; 16 July 2019
Date of orders:	16 July 2019
Decision date:	16 July 2019
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Mr Raneri’s evidence is excluded by operation of s 137 of the Evidence Act
Catchwords:	CRIMINAL PROCEDURE Admissibility of evidence – exclusion of prejudicial evidence in criminal proceedings – whether evidence of Mr Raneri should be rejected – whether evidence is relevant – whether probative value of evidence outweighed by danger of unfair prejudice to defendant – held evidence excluded.
Legislation Cited:	Evidence Act 1995 (NSW), s 137
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

Judgment

1. The Crown wished to lead evidence from Crime Scene Officer Raneri whose statement of 23 October 2018 was tendered before me as Exhibit Voire Dire 3 for the purpose of the preliminary ruling I made under s 192A of the Evidence Act 1995 (NSW). It relates to the second aspect of that ruling which I refer to as the nail package. Exhibits BU and CC are photographs of the nail package and Exhibits CD to CG are its components as deconstructed by Crime Scene Officer Cubis who has already given evidence in the trial about his inspection of, and samples taken from, the nail package.

2. The basis of my ruling that the nail package was admissible was that the expected evidence of a technical analyst employed by the AFP, Mr Page, demonstrated that it could be a construct capable of enhancing the destructive effects of an IED like the one the subject of these proceedings. On the basis of that proposed evidence, I ruled that, if accepted, the nail package coupled with Mr Page’s evidence might demonstrate something about the accused’s state of mind prior to the events of 24 July 2015 and that state of mind was knowledge that IEDs can be fabricated and their destructive effect can be enhanced by the inclusion of something like the nail package.

3. Mr Raneri has engaged in a computer assisted process of preparing a DVD to be played to the jury which in 3D format shows the nail package from all aspects and purports to demonstrate that the nail package, itself, would fit into one of the square hollow tubes that have been tendered already and must have, on the evidence, formed part of the IED. That is not contested.

4. However, the evidence of Mr Raneri, and its visual reconstruction that the nail package does fit into the tube, in my opinion, exceeds the bounds of relevance in the case. Mr Tunks, Crown Prosecutor, put it, as he said, at its highest, that it was a logical extension of the admission of the evidence about the nail package, I have already referred to. However, I am not so satisfied that it is a logical extension and I think that this evidence attenuates the relevance of this matter and indeed attenuates it beyond breaking point.

5. It is not the Crown case that the “shrapnel”, or screws that were found after the explosion, and indeed some of which were removed from Mr Burrows’ body, was in any way packed in such a package as depicted by, for instance, Exhibit BU, and it seems to me, now I know so much more about the evidence in the trial, that even if Mr Raneri’s evidence remained relevant on the basis put forward by the Crown, I am persuaded that its prejudicial effect far outweighs its probative value in this case.

6. I accept Mr Price’s, of counsel, submissions that this evidence is likely to give this marginally relevant material such prominence that the risk of the jury misusing it is such that the conventional directions I had in mind giving in relation to the evidence are unlikely to be entirely effective. It seems to me that there is a real risk that notwithstanding directions about the limited relevance of the nail package, the jury might extrapolate that the shrapnel or screws recovered from the blast scene and on post mortem were assembled in like manner to the nail package and given that the nail package was seized in the course of execution of a crime scene warrant in a shed at the accused’s home, there is a real risk that they will mistakenly consider it to be evidence that he is the perpetrator of this obvious crime in circumstances where the identity of the offender is the only real and substantial issue in the case.

7. For these reasons, I am of the view that Mr Raneri’s evidence is excluded by operation of s 137 of the Evidence Act even if I am wrong about its lack of relevance in the case.

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Decision last updated: 01 August 2019