R v Barakat (No 7) [2016] NSWSC 1360

Supreme Court New South Wales

Medium Neutral Citation: R v Barakat (No 7) [2016] NSWSC 1360 Hearing dates: 11, 19, 23 September 2016 Decision date: 26 September 2016 Jurisdiction: Common Law - Criminal Before: N Adams J Decision: The accused's application to have the evidence of Ms Ahmad and the telephone records excluded is upheld. Catchwords: EVIDENCE - shooting murder – where call charge records and reverse call charge records indicate that accused was in the vicinity of the deceased's home some weeks before the shooting – where deceased's wife recalls seeing black Range Rover in vicinity of home four to six weeks before shooting – where dark blue Range Rover registered to accused - whether evidence capable of affecting the assessment of the probability of a fact in issue – evidence as to cell towers incomplete – evidence not relevant. Legislation Cited: Evidence Act 1995 (NSW), s 55 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 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"). 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. 2. A number of pre-trial applications were determined prior to the empanelment of a jury on 20 September 2016. 3. On 11, 19, 23 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 regarding the sighting of a black Range Rover similar in appearance to one of two cars registered to the accused. The wife of the deceased observed a black Range Rover in a street around the corner from Thorpe Place in Abbotsbury, where the deceased resided, at around 12.30 - 1am four to six weeks before the shooting. 4. The voir dire was stood over part heard twice during the trial in order to permit the Crown the opportunity to obtain material from the Telstra Corporation Limited ("Telstra") in response to matters raised by Mr Dalton. The last occasion on which evidence was led was Friday 23 September 2016, at which time the voir dire concluded. I reserved my decision over the weekend. It is anticipated that the Crown case will conclude either today or tomorrow. The Crown accepted that, even though Telstra had not answered all of its enquiries, the trial could not be delayed any further for that to be done.