Supreme Court New South Wales Medium Neutral Citation: R v Barakat; R v Younes (No 4) [2016] NSWSC 1310 Hearing dates: 09 September 2016 Date of orders: 09 September 2016 Decision date: 16 September 2016 Jurisdiction: Common Law - Criminal Before: N Adams J Decision: (1) Evidence of the accused's possession of a bulletproof vest is excluded. (2) Evidence of the call between the accused and Eleena Bakhos on 17 October 2016 is inadmissible. Catchwords: EVIDENCE – shooting murder – where accused in a possession of a bulletproof vest at the time of execution of a search warrant – whether evidence relevant – whether probative value outweighed by danger of unfair prejudice - danger that jury would engage in impermissible tendency reasoning –- evidence excluded under s 137 EVIDENCE – telephone intercept – where accused makes reference to a firearm in casual conversation – where Crown contends that evidence demonstrates that the accused is a person familiar with firearms – evidence irrelevant and therefore inadmissible Legislation Cited: Evidence Act 1995 (NSW), ss 55, 97, 98, 101, 137 Cases Cited: Melhuish v Regina (2002) NSWCCA 85 Papakosmas v The Queen (1999) 196 CLR 297 R v Barakat; R v Younes (No 1) [2016] NSWSC 1152 Steve v Regina (2008) NSWCCA 231 Category: Procedural and other rulings Parties: Regina Mahmoud Barakat David Younes Representation: Counsel: P McGrath SC (Crown) D Dalton SC (Accused Barakat) G Stanton (Accused Younes) Solicitors: Solicitor for Public Prosecutions (Crown) Kiki Kyriacou Lawyers (Accused Barakat) Elie Rahme and Associates (Accused Younes) File Number(s): 2013/00239166; 2013/00327619 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"). David Younes ("Younes) pleaded not guilty at that time to one count of being an accessory after the fact to that murder. I have summarised the Crown case as contained in the Crown case statement in my earlier decision in R v Barakat; R v Younes (No 1) [2016] NSWSC 1152. The trial has not yet commenced. A number of pre-trial applications have been heard and judgment given prior to the empanelment of a jury. 2. On 9 September 2016, I considered two objections made by Mr Dalton SC to material sought to be adduced by the Crown against the accused. After hearing submissions in relation to those two objections, I ruled that neither piece of evidence was admissible in the trial. I indicated that I would provide my reasons for those decisions later. These are my reasons for making the rulings excluding that evidence. Bulletproof vest 1. At about 7am on 30 October 2013, the accused was arrested at his home in Yagoona. A search warrant was executed at that time. During the search of the premises, police located a bulletproof vest under the accused's bed. 2. The Crown relies upon the accused's possession of a bulletproof vest to show an expectation or fear of being shot at, which is circumstantial evidence relevant to establishing his involvement in the murder of the deceased. I was provided with copies of photographs of the vest. 3. It is a criminal offence to possess a bulletproof vest. The accused has been charged in relation to possession of that item. In the course of a covertly recorded conversation between the accused and Younes at Bankstown Police Station later that day, the accused admitted to Younes that he possessed a bulletproof vest. 4. Mr Dalton does not dispute that the accused was in possession of the bulletproof vest at the relevant time. Rather, his objection to the evidence is on the basis of relevance. Alternatively, assuming that relevance can be established, he seeks exclusion of the evidence under s 137 of the Evidence Act 1995 (NSW). 5. The Crown Prosecutor submitted that the evidence is relevant on the basis that the accused, having taken part in the shooting of the deceased, may have anticipated some sort of retaliation and therefore pre-armed himself. He conceded that there is no evidence in the Crown case of any attempts at retaliation and, apart from the shooting itself, no evidence that the accused had reason to expect retaliation. 6. The Crown Prosecutor indicated that the CCTV footage taken from Thorpe Place is insufficiently clear to ascertain whether the shooter, said to be the accused, was wearing a bulletproof vest. 7. When I inquired of the Crown Prosecutor how he would address the jury as to what use they could make of the material he conceded that: "The address couldn't help but merge into some sort of teasing it through. That's about it. The fact that the accused possessed a vest might show that he expected some retaliation for involvement in the shooting." 1. When asked how the probative value of the evidence could outweigh the risk of unfair prejudice (that is, that the jury would misuse the evidence to infer that the accused is a person of bad character), the Crown conceded that the matter was "finely balanced". 2. Mr Dalton submitted that the evidence was in effect being relied upon as tendency or coincidence evidence in circumstances where it does not meet the requirements under ss 97, 98 and 101 of the Evidence Act. Nor does the Crown seek to argue its admissibility on those terms. Mr Dalton relied upon the decision of the Court of Criminal Appeal in Steve v Regina (2008) NSWCCA 231 and distinguished the decision of Melhuish v Regina (2002) NSWCCA 85 on its facts. Consideration 1. The Crown case against the accused is a circumstantial one. The Crown seeks to establish beyond reasonable doubt that he was either the person who shot the deceased at point blank range in a suburban street during daylight hours or the driver of the vehicle in a joint criminal enterprise with the shooter. It seems to me that evidence of the accused's possession of a bulletproof vest three months after the shooting could rationally affect the assessment of the probability of the existence of a fact in issue: that is, whether the accused was involved in the murder. It is not a common item to have in one's possession. The accused's possession of it is consistent with his being fearful that he may be shot. 2. Although I am of the view that the accused's possession of a bulletproof vest passes the threshold test of relevance in s 55 of the Evidence Act, its probative value is not high. This is especially so having regard to the fact that there is no evidence to be adduced in the Crown case that anybody associated with the deceased in fact took any retaliatory steps after his death. 3. Turning to s 137 of the Evidence Act, I am satisfied that the probative value of the evidence of the bulletproof vest does not outweigh the danger of unfair prejudice to the accused in the material being admitted into evidence. There is a real risk that the evidence would be misused by the jury in an unfair way: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 at [91]. Although the possession of the vest would not satisfy the statutory requirements of ss 97, 98 and 101 of the Evidence Act, there is a real risk that the jury would impermissibly engage in tendency and/or coincidence reasoning. That is, they may reason that the accused is the sort of person who might have shot the deceased, since only people who use guns unlawfully are in need of an unlawful bulletproof vest. 4. It is for this reason that I rejected the proposed tender of the bulletproof vest in the Crown case against the accused. The telephone intercept 1. One of the transcribed telephone intercepts in the material tendered on the voir dire is a call between the accused and his then girlfriend Eleena Bakhos on 17 October 2013. The transcript discloses that she is calling from a dressing room of a shop trying on a costume of some sort. Although the accused answers the phone, he is still speaking with someone else in the background. The transcript of the call does not record what the other person is saying to the accused, who that person is, or the context of their conversation. The only words that can be heard are, "He got a Colt 45". 2. The Crown seeks to rely upon those words said by the accused to an unknown person in an unknown context in order to establish that the accused is familiar with gun-related terminology. 3. In response to questioning, the Crown Prosecutor indicated that the bullets that killed the deceased did not come from a Colt 45 and that it is not illegal to own a Colt 45 if you are licensed to do so through a pistol club. 4. The highest the Crown Prosecutor could put the argument for the call's admissibility was that, in combination with the other evidence in the case, the accused's comment shows that he is a person familiar with firearms and that he spoke casually and in a matter of fact way about the fact that someone had access to or had received a firearm. 5. Mr Dalton submitted that the material did not pass the threshold test of relevance in s 55 of the Evidence Act. Consideration 1. I am not satisfied that this evidence is relevant in the sense that it could rationally affect the jury's assessment of the probability of the existence of a fact in issue in the proceeding; namely, whether it was the accused who shot the deceased. 2. There are many people who could mention a weapon in casual conversation and not be familiar with firearms. It is not even clear whether the conversation concerned somebody on television or an actual person whom the accused knew. It is not possible to confirm whether the accused has correctly described the weapon in the conversation. Merely mentioning a weapon does not mean that a person is an expert in weapons, especially in light of how many weapons are depicted on television and in video games. I accept Mr Dalton's submission that the evidence is not capable of demonstrating whether the accused is in fact familiar with guns. He could be suggesting that a gun is a Colt 45 from what he has seen on television and he could be wrong. 3. It was for these reasons that I ruled that the Crown not be permitted to rely upon evidence of the relevant telephone intercept. orders 1. I make the following orders: 1. Evidence of the accused's possession of a bulletproof vest is excluded. 2. Evidence of the call between the accused and Eleena Bakhos on 17 October 2016 is excluded. ********** Amendments 18 January 2017 - Publication restriction note removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2017