Supreme Court New South Wales 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 1. 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. 1. 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 Exhibit Voir Dire 1 ("Ex VD1"). The subject matter of the documents, in general terms, deal with improvised or homemade bombs or explosive devices. The material the subject to ruling 2 is a nail package formed by tightly wrapping loose nails in cloth and strapping the bundle so produced with tape. This material was seized on 14 October 2015. Other evidence proposed to be elicited from experts suggests the constitution of the package is consistent with a fragmentation package to enhance the harmful effects of the detonation of an improvised explosive device ("IED") (see Exhibit Voir Dire 7; expert certificate of Christopher Page). The nature of the Crown case 1. The accused is charged with murdering John Burrows on 24 July 2015. He has pleaded not guilty. The Crown case is that Mr Burrows was killed on 24 July 2015 at 6:30 am in a laneway between his mother's home and the accused's home at Portland by the detonation of an IED. 2. I anticipate that the real and substantial issue for trial by the jury is whether the Crown can prove beyond reasonable doubt that the accused is the perpetrator of this obvious, serious crime. Context of the dispute 1. It is not in question that the Crown case against the accused is entirely circumstantial. I emphasise there is no direct evidence identifying the accused as the murderer. Submissions of counsel 1. Mr Tunks, Crown Prosecutor, submitted that the consideration that in a wholly circumstantial case the jury will be directed in conformity with legal authority that the question of the guilt or innocence of the accused is to be determined by inference from the whole of the circumstances proved to the jury's satisfaction by evidence they actually accept considered as a whole rather than in piecemeal fashion provides important context against which the questions of relevance and admissibility must be assessed: The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 (at [46] – [48], by Gummow, Hayne and Crennan JJ); Burrell v Regina [2009] NSWCCA 163; 196 ACrim R 199 at [100] – [102]; and Chamberlain v The Queen (No 2) (1993) 179 CLR 44; [1993] HCA 71 at [15]. 2. Mr Tunks submitted that these legal considerations going to proof of the ultimate question need to be borne in mind also when questions of probative value are considered for the purpose of statutory or discretionary exclusion of otherwise relevant evidence. Mr Tunks submitted that the proposed evidence, and in particular Exhibit VD1, is not tendency or coincidence evidence, admissible only through the narrow gateway provided by Pt 3.6 Evidence Act 1995 (NSW), ss 94 – 101. 3. Mr D Price of Counsel, who appears for the accused, objects to the tender of the evidence. He submitted that the material is not relevant as, even if accepted by the jury, it cannot rationally effect, even indirectly, the probability that the accused is the person who fabricated, positioned and detonated the IED that killed Mr Burrows. Nothing in Exhibit VD1 relates to the type of IED that was used to kill Mr Burrows. On the evidence that was manufactured in a somewhat sophisticated manner (Ex VD7, [5] – [9]). Likewise The nail package. The fragmentation package actually in the fatal IED contained screws and there is simply no evidence that it was fashioned in the same way. 4. Mr Price submitted in any event that notwithstanding the Crown's disavowal of tendency evidence, the contentious material of necessity falls into that category. The documents in Exhibit VD1 had apparently been downloaded in 1997 and at best, if they were the accused's documents, are capable of no more than showing the accused had an interest in IEDs at the time. And it certainly did not show any tendency to act upon such an interest. 5. The nail package was not shown to have any similarity whatsoever to anything used in connection with the fatal IED. Even if relevant for the purpose of s 55 Evidence Act it could not be said to be significantly probative for the purposes of ss 97 and 98 Evidence Act. Moreover, nor could its probative value outweigh the prejudicial effect of the evidence. That was identified by Counsel as the well-nigh inevitability of the jury treating the items as decisive of guilt. 6. Were I against him on his tendency argument, Mr Price submitted for the same reasons the evidence was excluded by force of s 137, or I should exercise my discretion to exclude evidence under s 135, Evidence Act. Counsel said the evidence in truth amounted to a "dangerous distraction". He re-emphasised the sophistication of the subject IED in contradistinction to the matters raised in Exhibit VD1. The matters of sophistication included the use of a commercially appropriate explosive propellant, gunpowder, in the subject IED as opposed to the ad hoc admixtures of various chemicals described in one of the Exhibit VD1 documents. Another of those documents seemed to describe no more than the elaborate production of a cardboard container into which one or two hand grenades could be placed. The third document relates to causing an explosive reaction in the petrol tank of a car by introducing a plastic container filled with an admixture of Ajax and Draino. All of these matters were quite unlike the device described in Exhibit VD7. 7. In reply the Crown stressed that the relevance of Exhibit VD1 derived not from the date upon which the documents were apparently downloaded in 1997 but from the consideration that they were found in a filing cabinet in the bedroom occupied by the accused when Mr Burrows was murdered. Moreover in a voluntary interview with police on 24 July 2015, the day of the murder, he denied ever having downloaded such material at any time. Other factual considerations 1. Three documents in Exhibit VD1 contained an endorsement apparently indicating they had been downloaded on 29 September 1997. It will be said in the trial that this pre-dates the accused taking up occupation at the Portland premises which he shared with his sister by some two years. Although it is accepted the documents are present in the filing cabinet in the applicant's bedroom when seized. It is also said there is no forensic evidence by way of fingerprint analysis or DNA traces associating the documents with the accused. Indeed, the only forensic evidence identified the fingerprint of a serving police officer on the document. 2. There is, however, forensic evidence associating the accused with the nail package. This evidence consists of traces of the DNA of the accused on a number of aspects of cloth components of the package including some instances below the outer layer of taping. 3. In Exhibit VD7, Christopher Page, a technical intelligence analysist in the service of the Australian Federal Police expresses the opinion that the componentry of the IED recovered from the crime scene are consistent with a device of that type. His evidence will be that typically an IED has five main components "with the occasional addition of a potential sixth component" (Ex VD7 [7]). The five components are: a switch for firing; a power source; an initiator (or detonator); a container for concealing or confining the IED; an explosive charge; and the sixth condition is an enhancement such as a fragmentation component enhancing the destructive harm wreaked by the IED. Only an initiator was not recovered from the crime scene, although apparently a receiver for a remote control device was. Consideration 1. It needs to be borne in mind that for the purpose of determining relevance, one proceeds on the assumption that the evidence will be accepted. This derives from the expression in s 55 Evidence Act defining relevance in terms including "evidence … if it were accepted". This assumption is made even where, as here, there may be cogent arguments to be put to a jury capable of persuading them that the evidence should not be accepted. 2. Furthermore, given the circumstantial nature of the prosecution case, I accept evidence which in isolation may appear weak, when taken with other circumstances established to the jury's satisfaction may form a cogent part of a Crown case. In Hillier (at [46]) Gummow, Hayne and Crennan JJ said: It is of critical importance to recognise, however, that considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. And their Honours further stated at [48]: Often enough, in a circumstantial case, there will be evidence of matters, which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal is a circumstantial case to be considered piecemeal. (My emphasis). 1. In Chamberlain v The Queen (No 2) Gibbs CJ and Mason J said at [15], 539: Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider "the weight which is to be given to the united force of all the circumstances put together". (Citations omitted) 1. I accept obviously that Exhibit VD1 and the nail package respectively do not describe, on the one hand, and is not a component of, on the other, the IED actually deployed by someone to kill Mr Burrows. But that does not mean that admissibility depends upon their ability to pass through the narrow gateway provided for the admissibility of tendency evidence by s 97 and s 101 Evidence Act. 2. In Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 ("Elomar v R") the Court Bathurst CJ; Hoeben CJ at CL; Simpson J (as her Honour then was)) said (at 360): Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion. However, their Honours also observed that because evidence was capable of being seen as tendency evidence did not necessarily require the evidence to be dealt with for admissibility purposes as tendency evidence. Their Honours said at [363]: … s 97 of the Evidence Act restricts only the admissibility of evidence to prove that a person had a relevant tendency. It does not restrict evidence that proves that a person in fact acted in a particular way, or in fact had a particular state of mind, if evidence is available to prove that fact without recourse to the syllogistic process of tendency reasoning. 1. Their Honours emphasised that proof of a state of mind, such as an interest in improvised explosive devices is not necessarily tendency evidence. This was explained at [367] – [368]: [367] Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person's mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference). It is therefore necessary to ask whether the evidence of Moustafa Cheikho's attendance at the LeT camp was evidence of a tendency on his part to support violent Islamic Jihad, from which the Crown would seek to have drawn an inference either (i) that he entered into the agreement alleged intentionally; or (ii) that he intended that a terrorist act would be committed in Australia. If that were the basis on which the Crown tendered the evidence, it would come within s 97 of the Evidence Act and the tests imposed by s 97 and s 101 would have to be applied. Alternatively, did the Crown seek to prove that Moustafa Cheikho in fact supported violent Islamic Jihad, from which, similarly, the Crown would seek to have drawn an inference that he entered the agreement alleged intentionally, or intended that a terrorist act would be committed in Australia? The former involves tendency reasoning; the latter does not. [368] The most powerful argument in support of the former proposition is the gap in time between Moustafa Cheikho's attendance at the camp, and the commencement of the alleged conspiracy. But that does not conclude the issue. Proof that a person held a particular belief on one occasion does not prove that he had a tendency to have that belief. It proves that, on that occasion, he did have that belief. There is no reason to think that, if Moustafa Cheikho had a state of mind that supported violent Islamic Jihad in 2001-2002, he did not continue to have that state of mind up to and including the time of the alleged conspiracy. 1. Strachan v R [2017] NSWCCA 322 is also instructive as Strachan was concerned with the admissibility of a manual relating to the manufacture or assembly of a machine gun where the charges were of possession of unregistered and prohibited firearms. None of the firearms was a machine gun. The firearms were seized from premises controlled by Strachan. It was accepted that the manual provided evidence of Strachan's state of mind i.e. of having an interest in firearms. But Basten JA (Bellew J agreeing) held that the evidence was not tendency evidence, notwithstanding it related to the offender's state of mind. His Honour said (at [21]): While it is true that tendency evidence is broadly defined (partly in terms which are circular) as evidence of a tendency that a person has, in order to prove that a person has acted in a particular way, or has a particular state of mind, it is not to be construed in the broadest sense available from the literal meaning of the words of the provision. The reference to proof of a particular state of mind does not mean that all evidence of character or conduct on a different occasion which goes to demonstrate a state of mind, including knowledge, of an accused is tendency evidence. Rather, the term "tendency" suggests a pattern of behaviour. His Honour pointed (at [22]) having a particular state of mind including specified knowledge does not necessarily demonstrate a tendency to commit criminal acts. However, evidence Strachan's of an interest in firearms "tended to establish that [Strachan's] denial of knowledge of the contents of the box was implausible". 1. Hamill J agreed with Basten JA. He did not regard the evidence as tendency evidence under s 97 Evidence Act either. He did, however, emphasise the need for the jury to be directed appropriately to ensure that the jury did not use the evidence to reason that an accused was more likely to be guilty because he had a tendency to possess firearms or to have a state of mind that made it more likely that he would possess firearms. 2. Although these cases, clearly, are not identical to the present case, I am satisfied that they provide guidance as to admissibility of the evidence in this case. Not all evidence going to proof of a state of mind of an accused person falls into the category of tendency evidence. I accept that the accused disputes knowledge of Exhibit VD1, but that is a matter which the jury will need to resolve. And there is force in the Crown's argument that the date of download is not the relevant date. The relevant date is the date of Mr Burrow's death. The evidence is capable of satisfying the jury that these documents were in his possession as at that date because they were in a drawer in the filing cabinet in the bedroom occupied by him in his home at Portland. The jury may not accept that the accused was aware of the existence of Exhibit VD1. However, if the jury accepts that he kept the documents and also the circumstance of his denial of the possession of such material, then these matters taken together with all of the circumstances relied upon by the Crown is evidence capable of satisfying the jury that the accused is the offender who murdered Mr Burrows. There is no doubt that Mr Burrows was murdered. The question for determination by the jury is whether they are satisfied beyond reasonable doubt that the accused is the murderer. 3. I am not satisfied that Exhibit VD1 can only be admitted if the conditions for the admission of tendency evidence are satisfied. In my view it is admissible otherwise than as tendency evidence. The relevant state of mind of which it provides evidence, if accepted, is that the accused had knowledge that explosive devices could be improvised. This knowledge is relevant to the accused's capacity to commit the crime there being other evidence relevant to motive and opportunity. 4. Before dealing with the question of exclusion under s 135 or s 137 of the Evidence Act, I will deal with the admissibility of the nail package. For similar reasons, I am of the view that the nail package is evidence of the applicant's state of mind. The relevant state of mind is knowledge of componentry of IED's. For the reasons explained in R v Elomar this is not necessarily tendency evidence. I do not regard the evidence as tendency evidence, rather it is evidence, if accepted, of the accused's knowledge of the components of an IED which also goes to the relevant circumstance of whether he had the capacity to commit the act which resulted in Mr Burrow's death. It is not evidence that he had a tendency to act in a particular way. I repeat it is evidence that at the relevant time the accused had necessary knowledge. 5. I accept that the Crown's characterisation of the evidence "cannot conclude the issue" (R v Elomar [347]). The Crown's disavowal of reliance upon the evidence as tendency evidence is not conclusive and I am bound to make my own assessment of the evidence "in order to ascertain the true purpose of its tender". Having borne this in mind I have come to conclusions articulated above. 6. I accept that there is some danger that the jury may misuse this evidence by giving it undue weight. However, I am of the view that this risk can be effectively mitigated by providing appropriate directions, including an appropriate direction regarding the proper approach to the assessment of a circumstantial case and a specific direction against reasoning in a tendency fashion in relation to the evidence of knowledge on the part of the accused provided by Ex VD1 and the nail package, assuming the jury accept that evidence as evidence of knowledge about improvised explosive devices, and of their componentry. 7. For these reasons I made the ruling set out at paragraph 1 above. ********** Amendments 30 July 2019 - Publication restriction lifted 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: 30 July 2019